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Property-Final-CP > Property Final CP > Flashcards

Property Final CP Flashcards

1
Q

Public Easements

A

Public Easements arise from:
- long and continuous use by the public under a claim of right
- an implied dedication
- custom
- public trust (beach access)
* How to precent a prescriptive easement in favor of the public: block off public access for a day per year

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2
Q

Scope of Easements

A

Types of changes:
(1) of parcel—most courts would grant an injunction, Brown v. Voss is a minority opinion.
(2) Of intensity—subdividing the dominant estate
(3) of use—rails to trails

Factors to consider:
- Burden (can’t increase too much); Foreseeability; Consistency with old use of land

Remedies: Damages/Injunction

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3
Q

Termination of Easements

A
  1. Release
  2. Expiration (if for a term)
  3. Merger
  4. Abandonment
  5. Condemnation (emminent domain)
  6. Prescription
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4
Q

Termination of Covenants

A
  1. Merger
  2. Release
  3. Acquiescence
  4. Abandonment
  5. Unclean Hands
  6. Laches
  7. Estoppel
  8. Eminent Domain
  9. Prescription
  10. Changed Conditions

*While discriminatory covenants are presumptively valid (depending on touch and concern) it is illegal for courts to enforce them

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5
Q

Civil Trespass

A

(1) Intentional
(2) Unprivileged
- Without owner’s consent
- Lacks necessity as a justification
(1) imminent danger
(2) trespass will abate danger
(3) no reasonable legal alternative
(4) not prohibited by legislature
- Not otherwise justified by public
policy

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6
Q

Right to Destroy

A

Normally unrestricted during life
- Exceptions:
(1) ordered by will
(2) historic preservation
(3) public policy

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7
Q

Fair Housing Act (FHA)

A

Scope:
Race, Color, Religion, National Origin, Family Status, Sex (orientation), Disability

Prohibited Conduct:
Initial lease transaction/terms/conditions

Must prove either: disparate treatment or disparate impact

Exceptions:
- Do NOT apply to advertisements (advertising agency will be liable for any discrimination as well)
- Mrs. Murphy exceptions:
(1) Owner did not use a broker or an
advertisement and owns no more
than 3 single family homes
(2) Max 4 building/unit dwelling and the
owner resides in one of them

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8
Q

Gifts

A

(1) Intent
- Preferably in front of witnesses
- May be presumed by desert

(2) Delivery—hierarchy
- Manual (strongly preferred)
- Constructive (delivers the means of
access to something)
- Symbolic (in writing)

(3) Acceptance
- Presumed if of value
- Irrevocable
- Exceptions: checks, gifts causa mortis

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9
Q

Adverse Possession

A

(1) Actual entry
- Color of title
(2) Open and notorious
(3) Continuous and Uninterrupted
- For statutory period
- Seasonal occupation counts
(4) Hostile and adverse
1. Objective
2. Good faith
3. Bad faith
(5) Exclusive

Watch out for:
*Tacking
*Disability

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10
Q

Bailment

A

Rightful possession of fungible goods by a person who is not the owner
Elements:
(1) Bailee’s intent to control property
(2) Bailee’s actual control of property

Standards of Liability:
Benefit Bailor: Gross negligence
Mutual Benefit: Ordinary negligence
Benefit Bailee: Slight negligence
Bailee Misplacement: Strict liability

*Statutes may change each of these standards

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11
Q

Types of Lost Property

A

Abandoned (discarded by owner): goes to the finder

Lost property (owner does not know where it is): goes to the finder against all but the true owner

Mislaid property (misplaced by owner): goes to the owner of the place where it was found in hopes owner will retrieve it, if not, goes to the finder against all but the true owner.
- The more private a place is, the more
the presumption that everything
there belongs to the owner of the
land.
- Same if it is found attached to land

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12
Q

Criminal Trespass

A

Same elements of civil trespass except:
(1) Trespasser knows they are on private
property OR should know
(2) Trespasser was asked to leave but
stayed

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13
Q

Tenancy By The Entirety

A

Same as a joint tenancy with an added fifth element of marriage.
- Not severable OR destructible by one
party
- Right of survivorship
- Form of asset protection

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14
Q

Terminating a Joint Tenancy

A

May terminate a joint tenancy by breaking ONE of the unities
- May terminate it unilaterally, though
a “sham” conveyance or straw man is
no longer necessary, some states
require recordation.
- Cannot be broken by a will
- Generally not destroyed by lease or
mortgage

Partition:
- In Kind: Court splits land in half
(preferred)
- By Sale: Court sells land and splits
according to each JT’s share

Owelty: Partition + Compensation, where fair split is not possible, one party may have to pay the other party

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15
Q

Benefits and Burdens of Co-Ownership

A

Accounting: Equitable action to recover share of benefits (sometimes brought with partition)

Contribution: action asking co-owners to compensate for tending to the property or for necessary repairs

Ouster: where one co-owner has exclusive possession and denies entry to another co-owner who is seeking entry
- Maj: no compensation without ouster
- Min: compensation when one CO is in
exclusive possession

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16
Q

Default/Abandonment By Tenant

A

Self Help Requires:
(1) Breach of Contract; AND
(2) Peaceful means
- Generally disfavored because of efficiency of eviction hearings and housing court

In abandonment, L can: (1) surrender claim for remainder of rent (2) leave unit vacant and ask old T for rent; (3) Rent it out and seek differential in rent $$
- Typically L has duty to mitigate
damages
- Breaching T is liable for rent until L
finds new T

17
Q

Covenant of Quiet Enjoyment AND Constructive Eviction AND Partial Eviction

A

(1) Wrongful Conduct
- Actions, Inactions, 3rd party actions

(2) Substantial Interference (from a reasonable person’s POV)

(3) Timely Vacation (not too soon, not too late—may be waived)

Partial Eviction:
- Actual Partial Eviction: T relieved from
duty to pay rent
- Constructive Partial Eviction: No full
relief from obligation to pay rent

CQE may be breached and sued on
CE is a defense to L’s action for rent $$

18
Q

Common Interest Communities (CICs)

A

Agreed to Covenants that run with the land
- Enforced by HOAs

Two Tests:
- Cat Lady Case: reasonableness
standard (benefit vs. harm)
- Restatement:
(1) Illegal;
(2) Unconstitutional;
(3) Public Policy:
- Arbitrary, spiteful, &
capricious
- Interfers w/ alienability
- Burdens fundamental
constitutional right
- Unconscionable

19
Q

Joint Tenancy

A

Not the preferred form of Co-Ownership
- Right of survivorship
- May be unilaterally destroyed
- May have to express intent to form JT

Requires 4 Unities:
(1) Time
(2) Title
(3) Interest
- Unequal shares now allowed
(4) Possession

20
Q

Nuisance

A

(1) Intentional
(2) Non-trespassory
(3) Unreasonable
(1) Threshold (gravity of harm)
- if meets threshold, then its a
nuisance and court may enjoin
(1.5) Balance the equities (harm vs.
social utility) to determine if
there should be damages
instead of an injunction
(2) Restatement: balance harm vs.
social utility to determine if there
is a nuisance in the first place;
then may issue damages
(4) Substantial
(5) Interferes w/ use/enjoyment of land

*D may argue P should have known about their use of the land or that they are complying with regulations (not a good argument in eyes of the court)

*Also may be a public nuisance

21
Q

Tenancy In Common

A

Preferred form of co-ownership
- Separate but undivided interest
- No right of survivorship
- Interests are descendible and may be
conveyed by will or deed

22
Q

Types of Leaseholds

A
  • Term of years
  • Periodic Tenancy
  • Tenancy at suffrage
  • Tenancy at will
23
Q

Expanding Aims of Zoning

A

Zoning has expanded to encompass aesthetic regulation (idea of public welfare)

Household Composition: Zoning is unconstitutional as applied to blood relatives; non-relatives can be regulated
- Only total occupancy limits are
exempt from the FHA

Zoning may not be used to discriminate and impact racial composition (violated FHA) OR to exclude low-income housing

24
Q

Eminent Domain

A

(1) Public Use; and
(2) Just Compensation
- Generally fair market value: recent
sale price; or value of comparable
properties; or the capital value of
a properties actual/potential rental
capacity; or rebuilding price
discounted by wear and tear

25
Q

Zoning

A
  • Exercise of police power
  • Enforced by municipalities ordinaces

(1) Non-conforming uses:
- Amortizations (5 years to leave)
- Vested rights (heavy reliance)

(2) Variances
1. Undue hardship
2. Doesn’t harm public good or
conflict with purpose of ordinance
too much
3. Not self-inflicted

(3) Special Exceptions:
- Exception explicitly laid out by
zoning ordinance

(4) Amendments
- After the fact changes; may feel a bit
like spot-zoning, which is illegal

26
Q

Implied Easements

A

Easement by Estoppel (Irrevocable License):
(1) Permission from property owner to
neighbor to use land;
(2) Good faith reliance by neighbor
(3) Owner’s knowledge of reliance

Easement by Prior Use (implied reservation)
(1) Initial unity—common owner—
followed by severance;
(2) Use of one parcel to benefit
another
(3) Apparent prior use
(4) Reasonable necessity of
continuing use

Easement by Necessity (landlocked)
(1) Initial unity followed by severance
(2) Strict necessity at time of
severance; some states relax the
necessity standard

Easement by Prescription (A/P)
(1) Adverse and hostile use
(2) open and notorious
(3) continuous
(4) use for statutory period
(5) sufficiently exclusive—not required
by most jurisdictions

27
Q

Implied Warranty of Habitability

A
  • Easier action than CQE and CE but more narrower in scope
  • Applies ONLY to residential leases
  • Generally not waivable by contract
  • Though wider array of remedies:
    - Recission/vacation;
    - Damages;
    - Withhold rent without vacating
    - Repair damages and deduct it from
    rent
  • Generally about anything related to health and safety
    - Actions, Inaction, 3rd parties
  • Generally T must notify L and wait reasonable amount of time for L to repair
28
Q

Subleases/Assignments AND Consent Clauses

A

Two Tests:
(1) Intent test: What words/label did the
parties use
(2) Formal test: how much of the interest
was actually conveyed, total interest
(assignment) or only part (sublease)

Consent Clauses:
Maj: With an unqualified consent clause, L
can deny sublease/assignment for
any reason at all
Min: Unqualified consent clauses are
implied to have some
reasonableness standard
(commercial reasonableness) BUT L
may still deny for any reason if
expressly provided so in the contract

29
Q

Civil Rights Act of 1866 (CRA)

A

Scope:
Race as defined in 1866 (so also considers national origin, like German or Jewish

Applies to all leases, commercial and residential

Prohibited Conduct: initial lease agreement, conditions and terms

NO exceptions

Must prove discriminatory intent

30
Q

Implicit/Regulatory Taking

A

Distinct from Imminent Domain

Is something physical on the property, Even as little as 1%? IF SO, then a taking

Is the regulation conflicting with a lawful right (i.e. not simply enforcing a nuisance)
IF SO, then move on in analysis, IF NOT, then not a taking, just enforcing the law

Does the situation fit into a categorical taking?
- Loretto: permanent/recurring physical
invasion (Cedar)
- Lucas: total value wipeout
IF either of these, then YES its a taking

If none of the above takings apply, then move on to Penn Central Test:
(1) Extent of Economic Impact (diminution in value)
(2) Existence of Investment Backed Expectations
(3) Character of government regulation (i.e., Penn Central was a train station and still had the ability to operate as such)

31
Q

Covenants (Real Covenants and Equitable Servitudes)

A

Real Covenants: Enforced by damages

Equitable Servitudes: Enforced by injunctions

Requirements:
(1) Intent
(2) Writing
(3) Horizontal Privity
(4) Vertical Privity
(5) Touch + Concern Land
(6) Notice

Different for Burden and Benefit: see screenshot on desktop

32
Q

Easements

A

May be:
(1) Appurtenant: between land with a dominant (benefitting) and servient (burdened) estate
OR
(2) In Gross: Personal and between one person and the land

AND MAY BE

(1) Positive: gives right to do XYZ

  OR

(2) Negative: restricts right to do XYZ

Easements are subject to the Statute of Frauds, BUT may be implied

Property-Final-CP (1 decks)

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