Property Flashcards
Profit
Non-possessory interest in land that allows the holder to enter the servant tenement and take something off the land (e.g., minerals)
Can be (a) appurtenant or (b) gross
Profit Appurtenant: benefits dominant estate; can ONLY be transferred WITH the dominant estate
Profit in Gross: does not exist to benefit a dominant estate; therefore, can be transferred INDEPENDENT of the dominant estate
License
Does not create an estate or an interest in land; rather, merely permits someone to come onto the land for a specific purpose. The license is personal to the licensee and not transferrable.
If the language of the conveyance is to the grantee’s “heirs and assigns,” that is language that indicates conveyance is NOT a license (b/c licenses are not transferable)
Fixture
Chattel the has been so affixed to part of land that it ceases to become personal property. A fixture passes with ownership of the land. The factors for evaluating the annexor’s intent are: (i) the relationship between the annexor and the premises, (ii) the degree of annexation, and (iii) the nature and use of the chattel.
If the item has NOT been incorporated into a structure, whether it is a fixture depends on…[N-M-D]
(a) NATURE of article
(b) MANNER of attachment
(c) amount of DAMAGE caused by removed
Trade-Fixtures: presumption that commercial T can remove all fixtures prior to expiration of tenancy. Presumption can be overcome by showing of accession (intent of annexor to make chattel permanent part of realty)
Equitable Conversion
Upon execution of a land sale K, B is the equitable owner of the real property and S has a right to the sale proceeds (as equitable owner of personal property). B bears the risk of loss b/n K signing and closing.
Exoneration
CL doctrine where devisee of specific property is entitled to have land exonerated by payment of liens and mortgages from the testator’s residuary estate.
Example:
––O and B have land sale K
––B dies b/f closing, and had a will giving real property to S and personal property and residuary estate to D.
––S can demand that O go through with the sale (equitable conversion), and under doctrine of exoneration, S can require D to pay the purchase price
How can successful AP sell property?
First, file suit to quiet title; then judge can stamp deed, which will allow AP to sell
Holdover Doctrine
Where T continues in possession after expiration of lease, LL can either (a) begin eviction proceedings or (b) bind the tenant to a new periodic tenancy.
If LL binds T to new periodic tenancy, the term and rate depend upon the following…
––If COMMERCIAL T
––––––If original lease term was 1y+ –> year-to-year tenancy results
––If RESIDENTIAL T
––––––Month-to-month tenancy results, regardless of the term of the original lease
––What’s the rent?
––––––For either comm or res T, if LL notified b/f termination of rent increase, T will be bound to the increase if he does not surrender. Even if T objects to the rent increase, T will be bound, provided rent is reasonable.
Implied Covenant of Quiet Enjoyment
An implied covenant in every lease (residential or commercial) providing that T has a right to quiet enjoyment and use of the premises, without disturbance from L. The covenant can be breached by actual eviction, partial eviction, or constructive eviction.
Actual eviction: occurs when T is excluded from the ENTIRE premises. T is relieved of duty to pay rent.
Partial eviction: occurs when T is excluded from a PORTION of the premises. If L’s actions caused the exclusion, then T is relieved of obligation to pay ALL rent, even though only a portion is useable. If a 3P’s actions caused the exclusion, then T must pay fair rental value of the portion from which he is not excluded.
Constructive eviction: occurs when the premises is unsuitable for occupancy. T must show…
(1) L breached a duty to T
(2) the breach of duty caused a substantial interference with T’s use and possession of the premises
(3) T gave L notice and a reasonable time to cure
(4) After that reasonable time, T vacated the premises.
If T can establish the above 4 requirements, T can terminate the lease and seek damages.
Implied Warranty of Habitability
A non-waivable warranty in every RESIDENTIAL lease. The standard is set by the local housing code; in the absence of one, the standard is that the premises must be FIT for BASIC HUMAN DWELLING. T has a broader set of remedies under IWH, compared to ICQE.
If L breaches the implied warranty of habitability, T can: (i) repair and deduct; (ii) abate rent; (iii) terminate lease; or (iv) remain in possession, pay the full rent, and sue for damages.
Assignment and Sublease
Assignment: complete transfer of entire remaining term
–Result: L and T are in privity of contract, but no longer in privity of estate. L and A are in privity of estate, such that they are liable to each other for all covenants that run with the land.
Sublease: transfer of part of remaining term
–Result: L and T’s relationship is unchanged, such that they remain in privity of contract and privity of estate. Sub and L have no privity. This means that if either L or the Sub breach a duty, they generally will need to bring an action against T. The exception is that the Sub can generally enforce IWH against L.
–Note: Sub can be liable for performance of covenants in the main lease if Sub expressly assumed the covenants.
LL Tort Liability
CL: no duty to make premises safe
Today, liability is recognized in six situations. Additionally, the modern view is that L is liable for ordinary negligence if he had notice and failed to repair.
i) Latent Defect
––Liable where L knows or should know of dangerous condition on premises, that T is unlikely to discover, and fails to DISCLOSE
ii) Common Areas
iii) Public Use
––Liable where 1) L knows or should know of dangerous condition which 2) T is unlikely to REPAIR before the admission of the public and 3) L fails to REPAIR
iv) Short Term Furnished Rental
––L has a heightened duty: he is liable for ANY defect, regardless of whether he knew of it
v) Negligent Repair
––L liable for his negligent repairs or those that give deceptive appearance of safety
vi) Covenant to Repair
––L liable for failing to repair or negligent repair in breach of covenant to repair
Remainders: contingent + vested [3 types]
Remainders typically follow life estates. Remainders never follow defensible fees.
Contingent remainder: interest is either (i) in an unascertained or unknown person or (ii) is subject to an unmet condition precedent.
Vested remainders
- -(i) Indefeasibly vested remainder
- -(ii) Vested remainder subject to total divestment
- -(iii) Vested remainder subject to open. Note rule of convenience (class closes when any member can demand possession)
Easement implied from existing use
must show (1) previous use was apparent and continuous and (2) the parties expected that use would survive division b/c reasonably necessary to dominant tenement’s use and enjoyment
the fact pattern that will trigger this is where A owns two lots and sells one of them
4 ways an easement can be created
P-I-N-G
Prescription
Implied from existing use
Necessity
Grant
Defense to enforcement of equitable servitude
Changed Conditions: so pervasive that entire area has changed
