Property Flashcards
Property - ADVERSE POSSESSION
A non-owner occupier can acquire title to property if he can show possession which is:
1) open and notorious
2) actual and exclusive
3) hostile
4) and continuous
5) for the statutory period
Property - ESTATES IN LAND
1) Fee Simple Absolute - aggregate of ALL possible rights in land
2) Determinable - durational; automatic possibility of reverter
3) Subject to Condition Subsequent - conditional; exercisable right of reentry
4) Life Estate
5) Remainder - naturally follows termination of preceding estate
6) Executory Interest - cuts short preceding estate before its natural termination
Property - DOCTRINE OF MERGER
If the same person acquires ALL present and future estates in a piece of property, they merge into a fee simple.
Property - RULE OF CONVENIENCE
Absent a contrary intention in the instrument creating a class gift, the class closes when any member can call for distribution.
Property - RULE AGAINST PERPETUITIES
A future interest in a third person must vest, if at all, w/in the lives in being plus 21 years.
Applies ONLY to:
1) contingent remainders
2) executory interests
3) class gifts
4) purchase options
5) rights of first refusal
6) powers of appointment
Property - JOINT TENANCY
Concurrent ownership of property where each co-T has a right of survivorship.
JTs must take their interests:
1) at the same time
2) by the same instrument
3) w/ equal shares of the same type
4) w/ identical rights to possess the whole
Property - JOINT TENANCY SEVERANCE
If one JT conveys his interest, the JT is severed and a tenancy in common is created.
LIEN THEORY: a mortgage or lien does NOT sever.
TITLE THEORY: a mortgage or lien severs on execution, leaving a tenancy in common.
Property - TENANCY IN COMMON
Concurrent ownership w/o right of survivorship.
Unless otherwise stated, a co-tenancy is presumed to be a tenancy in common.
Property - TENANCY BY THE ENTIRETIES
Form of concurrent ownership reserved for married couples, giving an automatic right of survivorship.
CANNOT be severed unilaterally. Only by:
1) Joint conveyance
2) One spouse conveying to the other
3) Divorce
Property - RIGHTS/DUTIES OF CO-TENANTS
1) Right to possess all of the property, but can’t bring possessory action against, or claim rent from, occupying co-T absent ouster
2) Occupying co-T has right to retain profits from his own use
3) Non-occupying co-T has the right to a pro-rata share of:
- rents/profits from 3P use
- profits that deplete the property’s value
4) Non-occupying co-T is liable for pro-rata share of:
- necessary repairs (NOT improvements)
- property taxes and mortgage payments (in excess of rental value if 1 co-T is occupying)
Property - TYPES OF TENANCY
TERM OF YEARS
- defined start and end dates
- automatic termination absent renewal
PERIODIC
- undefined end date
- automatically renews absent written notice
AT WILL
-freely terminated by notice, death, or transfer by either party
AT SUFFERANCE
-holdover T liable for reasonable rental value
Property - ASSIGNMENT AND SUBLEASE
Absent an express lease restriction of each, T is free to transfer his leasehold interest.
ASSIGNMENT = complete transfer of entire remaining interest
- assignee has privity of estate w/ L such that each is liable to the other on covenants that run w/ the land
- original T and L remain in privity of K absent novation
SUBLEASE = T retains some part of the remaining lease interest while transferring another part
- sublesee not personally liable to L absent express assumption
- if rent is not paid, L can terminate lease and sublease
Property - COVENANT OF QUIET ENJOYMENT
ACTUAL EVICTION
- L physically excludes T from all or part of the premises
- Excuses T from paying any rent
CONSTRUCTIVE EVICTION
- L breaches lease duty and breach substantially and materially deprives T of use and enjoyment
- Remedy = move out, if done timely, and terminate
Property - IMPLIED WARRANTY OF HABITABILITY
RESIDENTIAL ONLY
Where the premises are not reasonably suitable for human residence, T can, at her option:
1) move out and terminate lease
2) make repairs and offset cost against rent, after notice and an opportunity to cure, OR
3) seek damages against L
Property - WASTE
VOLUNTARY
Intentional or negligent property damage
PERMISSIVE
Failure to take reasonable steps to avoid property damage
AMELIORATIVE
Substantial alteration that increases the land value
–Modern rule: allowed if either (1) permitted by L or (2) justified by a substantial and permanent change in the neighborhood
Property - EXPRESS COVENANTS
To run with the land:
1) Intent - shown by language contemplating assignment
2) Touch and Concern - adds value to either party
BREACH:
- Traditional rule: lease covenants are independent; L’s breach does not excuse T from paying rent
- Modern rule: lease is a K w/ dependent covenants; therefore, L’s material breach allows T to terminate and avoid rent so long as he moves out
Property - EXPRESS EASEMENT
Right to use land for a particular purpose created by an express grant.
Must be evidenced in writing signed by grantor if over 1 year.
Property - EASEMENT IMPLIED BY PRIOR USE
1) Common ownership prior to severance
2) Apparent and continuous use at time tract is divided
3) Reasonably necessary to enjoyment of dominant parcel
Property - EASEMENT IMPLIED BY NECESSITY
1) Party asserting easement owns landlocked property (strict necessity)
2) Both parcels were originally part of the same ownership
Property - EASEMENT BY PRESCRIPTION
1) Open and notorious
2) Hostile
3) Continuous for the statutory period
Property - TRANSFER OF EASEMENT APPURTENANT
Where the possessor of a dominant parcel holds the easement burdening the servient parcel, the easement automatically runs w/ the land UNLESS the servient parcel is transferred to a BFP w/o notice.
Property - TRANSFER OF EASEMENT IN GROSS
Where the right of access is held irrespective of ownership of nearby land, it only runs w/ the land if it is held for commercial purposes.
Property - EASEMENT TERMINATION
1) Written release
2) Abandonment (intent + physical act or words in furtherance of that intent)
3) Merger (dominant owner acquires an interest in the servient estate at least equal in duration to the easement)
4) Estoppel (servient owner foreseeably and reasonably relies on holder’s action or abandonment)
Property - LICENSE
Privilege to go upon land of another.
Freely revocable UNLESS:
1) Coupled w/ an interest (licensee purchases personal property on licensor’s land and is given permission to come onto land to claim it)
2) Executed (licensee expends $ or labor in reliance; becomes revocable until he gets the value out of his expenditure)
Property - PROFIT
Non-possessory interest in land giving the holder a right to go onto another’s land and take something off it.
Can ONLY be created expressly or by prescription.
Property - COVENANTS - RUNNING OF BURDEN
1) Intent to bind successors - presumed if touches and concerns
2) Notice - actual, constructive, or inquiry
3) Horizontal Privity - set forth in granting instrument between original parties
4) Vertical Privity - successor holds the entire estate held by the covenantor
5) Touch and Concern - makes land more useful or valuable to a party
Property - COVENANTS - RUNNING OF BENEFIT
1) Intent
2) Vertical Privity
3) Touch and Concern
Property - SERVITUDE
Covenant that, regardless of running w/ land, equity will enforce against assignee of burdened land if he had:
1) Notice and
2) Intent
3) and the covenant Touches and Concerns the land
Property - IMPLIED NEGATIVE RECIPROCAL SERVITUDE
Prohibits certain uses that can be implied from a common scheme of development and notice of the negative covenant.
Property - VALID DEED
MUST BE:
1) Executed
2) Delivered - presumed if physically handed over, recorded, or acknowledge before a notary
3) Accepted - presumed if property is valuable
MUST CONTAIN:
1) words of intent
2) adequate description of property
Property - EQUITABLE CONVERSION
When a land sale K is formed, there is a bifurcation of title - seller holds legal, buyers holds equitable.
MAJORITY RULE: the risk of loss follows equitable title
MINORITY: under the Uniform Vender and Purchaser Risk Act, risk of loss remains w/ seller until either legal title or possession has passed to buyer
Property - QUITCLAIM DEED
Conveys ONLY what seller has, BUT still includes the implied warranty of marketable title. Therefore, AT CLOSING, seller must present title a reasonably prudent buyer would be willing to accept.
Property - WARRANTY DEED
PRESENT COVENANTS - don’t run w/ the land; breached, if ever, at time of conveyance
1) Seisin - title and possession
2) Right to Convey - no restraints on alienation
3) Against Encumberances (other than those of record)
FUTURE COVENANTS - run w/ land; breached at time of claim again title from valid source
1) Quiet Enjoyment - buyer will not be disturbed in lawful possession
2) Warranty - defend title and compensate for losses from undisclosed superior title
3) Further Assurances - perform whatever acts necessary to perfect title
Property - RECORDING STATUTES
RACE - whoever records 1st wins
NOTICE - subsequent BFP prevails over prior grantee who fail to record
RACE-NOTICE - subsequent BFP who also records 1st prevails over a prior grantee who failed to record
Property - ESTOPPEL BY DEED
When someone purports to transfer title to property he doesn’t currently own, then later acquires it, he will be estopped from denying grantee’s ownership.
Property - PURCHASE MONEY MORTGAGE
When, in one continuous operation, a mortgage is given to cover part or all of the purchase price of real property, the mortgage automatically receives priority over other types of mortgages
Property - FORECLOSURE
1) Extinguishes all junior interest if lienholders were given notice.
2) Borrower has equitable right of redemption up until foreclosure sale (and may have statutory right beyond that)
3) Deficiency judgment is available if the amount owing is greater than the current value of the property
Property - MORTGAGE ASSIGNMENT
If buyer takes SUBJECT TO a mortgage, he has no personal liability for it.
If buyer ASSUMES the mortgage, he becomes primarily and personally liable while the original borrower remains liable secondarily.
Property - EQUITABLE SUBROGATION
If someone other than the mortgagor pays off a senior mortgage, he can step into the shoes of the senior mortgagee and bypasses other interests, unless there are countervailing equities in favor of a junior lienholder.
Property - DEED OF TRUST
Recordable security interest in property under which trustor conveys bare legal title and agrees to iniation of foreclosure proceedings in the event of a default.
- Same notice required to foreclose as a mtg.
- Can be through non-judicial foreclosure to avoid right of redemption BUT there can be no deficiency judgment UNLESS you use judicial foreclosure AND the property is not a single family residence.
Property - LATERAL SUPPORT
Right to be free from collapse or subsidence of land caused by excavation on adjacent land.
STRICT LIABILITY if excavation causes subsidence of land in its natural state or of improved land that would have subsided in such state.
Move prove NEGLIGENCE to recover if improved land would not have subsided in natural state.
Property - SUBJACENT SUPPORT
Right to be free from collapse or subsidence of land caused by tunneling under land.
STRICT LIABILITY for land or buildings existing at time of grant.
Must prove NEGLIGENCE for subsequently built buildings.
Property - WATER RIGHTS - RIPARIAN DOCTRINE
Water belongs to those owning land abutting a watercourse, who share a right to reasonable use and must submit to the reasonable use of other such owners.
Property - WATER RIGHTS - PRIOR APPROPRIATION DOCTRINE
Water belongs to the state, but the right to divert and use it can be acquired by individuals, riparian or not, by priority of beneficial use.
