Property Flashcards
Adverse Possession
Adverse possession allows one who have wrongfully entered a property to obtain possession of that property when there has been actual possession, which is open and notorious, and the possession is hostile continuously for the statutory period.
Joint Tenancy
A joint tenancy is an estate in land held concurrently by two or more co-tenants. The feature that distinguishes a joint tenancy from a tenancy in common is the right of survivorship. When one joint tenant dies, the surviving co-tenants take the property free of the decreased tenant’s interest.
Four unities are required to create a joint tenancy: the unities of time, title, interest, and possession. This means the interests must have vested at the same time, have been acquired by the same instrument, be of the same type and duration, and give identical rights to enjoyment.
A joint tenancy can be terminated by the acts of one co-tenant. A joint tenant’s inter vivos conveyance of her undivided interest destroys the joint tenancy, and the transferee takes as a tenant in common. The effect of one co-tenant mortgaging her interest varies depending on the jurisdiction. A mortgage is generally regarded as a lien on title. Thus, one joint tenant’s execution of a mortgage does not by itself cause a severance. In the minority of states, a mortgage is regarded as a transfer of title, which destroys the unity of title.
Obligations of co-tenants
Each co-tenant has the right to possess and enjoy all portions of the property, subject to the equal right of the co-tenant. An ouster occurs if one tenant wrongfully excludes another from possession of the premises. An ousted co-tenant is entitled to receive his share of fair rental value of the property for the time ousted.
A co-tenant who pays more than her pro rate share of the cost of necessary repairs is entitled to contribution.
A co-tenant has a duty to pay her share of taxes and payments due on the mortgage.
A co-tenant out of possession has a right to share in rents from third parties.
Covenant of Quiet Enjoyment
Implied in every lease is a covenant that neither the landlord nor someone with paramount title will interfere with the tenant’s quiet enjoyment of the premises. One way a landlord can breach this covenant is through constructive eviction. This means that if a landlord does an act making the property uninhabitable, the tenant may terminate the least. The tenant can claim constructive eviction only if (i) the landlord breaches a duty to the tenant, (ii) the breach substantially and materially deprives the tenant of her use and enjoyment of the premises, (iii) the tenant gives the landlord notice and a reasonable time to repair, and (iv) the tenant vacates the property within a reasonable time.
Implied Warranty of Habitability
The warranty applies to residential tenancies. The court asks whether the conditions are reasonably suitable for human residence. When a landlord breaches the warranty of habitability, courts have allowed tenants to (i) move out and terminate the lease, (ii) make repairs directly and offset the cost against future rent obligations (iii) reduce or abate rent to an amount equal to the fair rental value in view of the defects in the property or (iv) remain in possession, pay full rent, and seek damages against the landlord.
Easement
An easement appurtenant is a right to use someone else’s land, called the servient parcel, for the benefit of the holder’s own tract of land, called the dominant parcel. Easements may be created expressly. When a servient parcel is transferred, its new owner takes it subject to the burden of the easement unless she is a bona fide purchaser with no notice of the easement. A bona fide purchase is someone who purchases property for valuable consideration, without notice of the prior interest. There are three ways a person who acquires servient land might be on notice of an easement (i) actual knowledge, (ii) record notice, or (iii) notice from the visible appearance of the easement on the land. An easement may be terminated by unity or ownership, written release, abandonment, estoppel, or prescription.
An easement in gross is created where the holder of the easement acquires that right independent of his ownership or possession of another tract of land.
General Warranty
A general warranty deed is one in which the grantor covenants against title defects created by himself and all prior title-holders. It typically contains three present covenants—seisin, right to covey, and against encumbrances—and three future covenants—for quiet enjoyment, of warranty, and for further assurances.
Covenant
A real covenant is a written promise to do or not do something on the land. Real covenants run with the land at law. For a burden to run with the land, (i) the original parties must have intended successors to be able to enforce the covenant, (ii) the successor must have notice under the relevant recording act, (iii) horizontal privity must exist between the original covenanting parties, (iv) vertical privity must exist between the successor and her predecessor, and (v) the covenant must touch and concern the land.
The burden of a negative covenant runs with the land if (i) sub-divider had a general scheme of residential development and (ii) lot holder had notice.
Equitable Servitude
An equitable servitude is a covenant that equity will enforce against the assignees of the burdened and who have notice of it. For the burden to run with the land, it should be intended and in writing. The assignee must have notice and must touch and concern the property.
There is an exception to the writing requirement. An equitable servitude may arise by implication from common scheme or development of a residential subdivision. Reciprocal negative servitudes will be implied if at the time that sales in the subdivision began the developer had a plan that all parcels would be subject to the restriction. The scheme may be evidenced by recorded play, general pattern of restrictions, or oral representation. The grantee must have notice of the covenants.
Land sale contract
The contract for a conveyance of an interest in real estate typically governs the agreement until the time of closing, at which time the deed becomes the operate document. The contract must be in writing, name the parties, signed by the party to be bound, sufficiently describe the land, and state some consideration.
Conveyance by deed
A deed is a document that serves to pass legal title from the grantor to the grantee when it is lawfully executed and properly delivered. A deemed must identify the parties, in writing and signed by the grantor, contain an adequate description of the property, and hold words of intent. A deed must be properly delivered and accepted to have effect. Words or conduct indicating the grantor’s intent to make a present transfer of the deed. Title passes immediately to the grantee upon proper delivery.
Waste
A tenant must prevent waste and cannot damage leased premises without effecting repair. There are three types of waste: voluntary waste, permissive waste, and ameliorative waste.
Fixtures
Fixtures are items that were once moveable chattel but that have become so attached to the premises they are deemed fixtures and considered part of the real estate. Courts will look to the method of attachment, effect of removal, intent, and any agreements.
Assignment
Absent an express restriction in the lease, a tenant may freely transfer her leasehold interest in whole or part. A complete transfer is an assignment. If she retains any part of the remaining term, the transfer is a sublease.
Nuisance
Private nuisance occurs when the land is invaded by intangibles, such as odors or noise, that substantially and unreasonably interfere with a private individual use or enjoyment of her property. In contrast, a public nuisance is an invasion by intangibles that unreasonably interfere with the health, safety, or property rights of a broad segment of the community. Recovery is available for public nuisance only if a private party has suffered some unique damages.
