Property Flashcards
Fee Simple (Absolute)
Strongest estate with full possessory rights now & in the future. No restraints on alienation
“O to A” & “O to A and his heirs”
Fee Simple Determinable
An estate that lasts until the happening of an event. Uses conditional language such as “so long as, during”. Automatic possibility of revertor in grantor.
If not followed by estate in grantor but to third party, then third party has executory interest
Fee Simple Subject to Condition Subsequent
Estate where grantor retains power to terminate upon happening of event. Uses “but if” languge. Grantor must exercise right of re-entry or subject to laches defense.
If not followed by estate in grantor but to third party, then third party has executory interest
Life Estate
Estate that lasts for duration of person’s life. Follwed by either
reversion (back to grantee) or remainder (goes to someone else)
vested remainder= no conditions to get it
contingent remainder= get it if they fullfill certain conditions
Life tenant must pay property taxes/interest on mortgage to the extent they derive income from land or lands reasonable rental value
Adverse Possession
Involves acquisition of title by occupier of land w/out consent of true owner. Possession must be:
- Open and Notorious (would put reasonable person on notice)
- Actual and Exclusive (only possesor uses the property)
- Hostile or Adverse (no permission or consent)
- Continuous (constant use)
- for Statutory Period
Class Gifts (rule of convenience)
class closes when a class member can call for the distribution of their share absent a contrary intent in instrument to include all members of a class whenever born
Joint Tenancy
requires that the 4 unities are met:
- time (acquired @ same time)
- title (hold title in same instrument)
- interest (identical– same type & duration)
- possesion (each have right to possess)
+ express right of survivorship
Tenancy in Common
Title in co-owners is presumed to be tenancy in common unless otherwise stated
No right of survivorship
Severance of Joint Tenancy – by conveyance
When a joint tenant conveys their interest to a third person, it severs the joint tenancy, & creates a tenancy in common
Severance of Joint Tenancy–by Mortgage/Lien
In majority lien theory states, mortgages/liens do not sever the joint tenancy on creation of the mortgage/lien. If mortgaging joint tenant dies, surviving joint tenant gets property free of the mortgage & lender gets nothing
In minority title theory states, mortgages/liens sever the joint tenancy on creation of the mortgage/lien. Become tenants in common. Lender/mortgagee holds a mortgage on the 1/2 tenancy in common interest owned by mortgaging co-tenant. If mortgaging co-tenant dies, mortgage survives on that 1/2 tenancy in common interest.
Co-tenants Right
to Possess All Property
Co-tenants have a right to possess all of the property BUT co-tenants out of possession can’t bring a possessory action or claim that posessing co-tenant owes them rent absent an ouster (wrongful exclusion from possession)
Co-tenants Right
to Retain Profits
Co-tenant in possession has the right to retain profits made from their use of the property, & there is no need to share these profits w/ other cotenants or reimburse them for rent, absent a written agreement OR if the profits are made from uses that deplete the property value (like mining)
Co-tenant Right
to Share in Rents from Third Parties
co-tenants out of possession have the right to their pro-rata share in rents/ profits from third parties in all circumstances
Co-tenants Contribution for Necessary Repairs
A co-tenant who pays more than their pro-rata share for necessary repairs, is entitled to contribution from other co-tenants in an action for accounting/partition– but there’s no right to contribution for mere improvements.
In addition, majority of courts permit an independent action for contribution if the repairs are necessary and re-pairing co-tenant first gives notice to other co-tenants
Co-tenants Duty
to Pay Taxes & Mortgage Payments
each co-tenant has a duty ot pay their share of property taxes/ mortgage payments.
Co-tenant who is not in possession & makes these payments is entitled to contribution from other co-tenants.
Co-tenant who is in sole posession & makes these payments is only entitled to reimbursement in the amount that exceeds fair rental value of the property.
Landlord /Tenant Roadmap
- Identify the type of lease (what type of lease is it?)
- Discuss whether there is a failure to pay rent
- Discuss whether there are any defenses to tenant’s failure to pay rent
- Discuss any issues arising from the assignment of the lease by landlord or tenant
Term of Years Lease
has a set start & end date , automatically terminates
on the end date, and does not renew absent the exercise
of a renewal clause
Periodic Tenancy
continues from year to year, or successive fractions like month to month. It automatically renews absent written notice of termination (usually 30 day minimum).
Failure to properly terminate will cause tenant to owe rent unless they can argue there has been a breach of implied/ express covenants
Holdover Lease
occurs if a tenant stays beyond the term of the lease by consent of the landlord & continues for the same rent but can be terminated by landlord w/ 30 days’ oral/written notice
Defense to Non-Payment of Rent:
Landlord Duty to Mitigate
When tenant wrongfully terminates lease & breaches their duty to pay rent, landlord has a duty to mitigate by attempting to reasonably re-let the premises.
Failure to mitigate is a defense to the non-payment of rent.
Assignment
– whether lease can be assigned
generally, a party has the right to assign a lease unless there is a covenant not to assign (look for language in lease binding “all successors & assigns” or generic description of parties as L/T).
Covenant not to assign will be enforced although consent cannot be unreasonably withheld
Assignment
– whether the lease was assigned
An assignment assigns the entire leashold estate–it is a complete transfer of the remaining term
Absent a novation, both the assignor & assignee remain liable on the covenant to pay rent bc the assignor, having signed the original contract, is in privity of K with the landlord, & the assignee, who is now in possession, is in privity of estate UNLESS landlord & new tenant execute an assumption of the lease.
Sublease
If tenant retains any part of the premises or remaining term, then they have made a sublease
sublessee is not personally liable to the landlord for rent, BUT the landlord can terminate the lease & evict the sublessee if they don’t pay
Landlord Duty
to Deliver Possession
refers to timely posession & runs w/ the lease when assigned
Landlord’s Implied Covenant of Quiet Enjoyment
automatically runs w/ the lease when assigned & goes to the use & enjoyment of premises. Can be breached by: 1) actual/partial eviction OR 2) constructive eviction
Prior to invoking a remedy, Tenant must give Landlord notice & reasonable opportunity to repair
Actual/ Partial Eviction
actual/ partial eviction consists of the the landlord physically excluding the tenant from all or part of the premises
Constructive Eviction
Requires that:
1) the landlord breach a duty set out in the lease; and
2) the breach materially & substantially interferes w/ tenant’s use & enjoyment of the premises
Tenant must give notice & reasonable opportunity to repair. Remedy is to move out & terminate the lease if done timely (but waived if no timely move out)
Implied Warranty of Habitability
requires that property be reasonably suitable for human existence & only applies to residential leases
If landlord breaches tenant may: 1) move out & terminate lease; 2) make repairs & offset cost against rent; or 3) seek damages. Tenant must give notice
Fixtures
Fixture is chattel that has been so affixed to the property that it has ceased being personal property & removal would cause substantial damage. It passes w/ the land.
Tenant generally can’t remove a fixture, absent a written agreement to the contrary unless its a trade fixture (equipment used in T’s trade/ business)
Tenants Implied Covenants
- covenant to pay rent (breach gives LL right to terminate & evict)
- covenant to repair damage they have caused
- covenant not to commit waste (voluntary, permissive, ameliorative)
Express Covenants in Leases that have Been Assigned
express covenants in a lease run with the land–meaning they are binding on successor landlords & tenants– if there is
1) intent (based on the lease language)
2) touches & concerns the land (affects the value of the lease to either party)
Traditional Rule for
Breach of Express Covenants
Express covenants in a lease are independent of each other. THUS, if L or T breaches an express covenant, breaching party may owe damages but non-breaching party is still not excused from performance
Exception for covenant to pay rent. If tenant breaches, LL may terminate & evict or refuse to renew lease even if landlord has breached other express covenants
Modern Rule for
Breach of Express Covenant
all express covenants are dependent of eachother. If the breach of landlord’s express covenant is material, that may be grounds for tenant to terminate lease & claim damages. BUT tenant may not refuse to pay rent unless they teminate the lease & move out timely.
Specific Performance/ Injunction of Express Covenant
If LL/T want to enforce the covenant by specific performance/injunc., instead of suing suing for damages, they can seek enforcement by showing:
- intent;
- notice; &
- touch and concern
Waste
an act done by someone in rightful possession of the property that does permanent injury to the land, harming the interest of someone entitled to future possession
Three types:
- voluntary – deliberate destructive acts
- permissive – acts of ommission or neglect
- ameliorative – alter property but result in increase in property value
Easement
the right to enter onto & use land for a particular purpose such as to travel through it
ESSAY ROADMAP:
- how an easement is created (5 ways– express, reservation, implication, necessity, & prescription)
- what type of easment is it? (2 types– appurtenant or in gross)
- was the easement terminated?
ways of creating an easement: ERINP (every rich idiot needs pull)
Express Easement
a direct grant of the easement, preferably w/ a deed, bc SOF requires interest in land to be evidenced in writing by grantor
ways of creating an easement: ERINP (every rich idiot needs pull)
Easement by Reservation
grantor reserves an easement for herself as part of the conveyance of the property to another
ways of creating easement: ERINP
Easement by Implication
if there was a prior use over a period of time amounting to consent. Prior use must be:
1) continuous & apparent at time tracts are divided; and
2) reasonably necessary to the enjoyment of the dominant parcel considering such factors as:
a) cost and difficulty of the alternatives &
b) whether price paid reflects the continued use of easement
ways of creating an easement: ERINP (every rich idiot needs pull)
Easement by Necessity
Arises where:
1) there was no prior use
2) the two parcels were originally under the same ownership @ one time;
3) party asserting the easement owns landlocked property w/ no access whatsoever to a public road
NOTE: Expires when necessity ends unless reduced to express easement
ways of creating an easement: ERINP (every rich idiot needs pull)
Easement by Prescription
(Same requirements as adverse possession EXCEPT no requirement for exclusive possession)
- open & notorious
- actual possession
- hostile or adverse
- continous for the statutory period
