Property Law Flashcards
Does an Easement Pass to a Successor in Interest if the Buyer had notice
Yes
Shelter Doctrine
when a bona fide purchaser acquires title free of a prior encumbrance, he can convey that title to a subsequent purchaser free of that encumbrance. In order to ensure that the bona fide purchaser has an unlimited right to alienate his land in the future, the shelter doctrine applies even when the subsequent purchaser has actual notice of the prior, unrecorded encumbrance.
Constructive Eviction
In order to establish a constructive eviction, the tenant must prove that the landlord breached a duty to the tenant, such as a duty to repair, and that the landlord’s breach caused a loss of the substantial use and enjoyment of the premises. The tenant must also show that he gave the landlord notice adequate to permit the landlord to meet his duty to the tenant and that the tenant vacated the leased premises
Implied Duty to Repair in Residential Leases
Under the common law, there was no implied duty on the part of a landlord to repair leased premises; such a duty arose only if expressly set forth in the lease. SPRANKLING, supra, § 17.02[B]. Here, the written lease contained no term requiring the landlord to repair the air-conditioning. Even if the conversation created a lease term that the building had air-conditioning, that itself should not create a duty for the landlord to repair it. Over the past several decades, courts have generally implied a duty to repair in residential leases either as part of a revised constructive eviction doctrine or based on an implied warranty of habitability. JOSEPH W. SINGER, PROPERTY 469–70 (3d ed. 2010). This shift has been justified based on the economic disparity between the typical landlord and tenant as well as the fact that residential tenants generally lack both the authority to authorize repairs to common areas of a building and the incentive to make repairs that will ultimately benefit the landlord.
Implied Duty to Repair in Commercial Leases
Typically not imposed by courts because businesses are more informed purchasers with more authority and financial independence to make repairs.
When courts have implied a duty to repair in a commercial lease, it is typically when the repair has been mandated by public authorities and involves work so substantial that it would not ordinarily fall within the tenant’s common law repair duty and/or the value of the repair would primarily inure to the landlord’s reversionary interest
Some courts have also permitted constructive eviction claims by commercial tenants of office buildings based on repairs required in common areas of the building.
Accepting the Surrender of a Leased Premises
When a tenant wrongfully moves from leased premises with the intent to terminate the lease, the landlord may either accept the tenant’s surrender of the premises and terminate the lease or hold the tenant to the terms of the lease.
The weight of the case law holds that retention of the keys alone does not constitute acceptance of surrender without other evidence showing that the landlord intended to accept the surrender.
Common-Law Remedies if a Tenant Breaches their Lease
Under the common law, because a lease was viewed as a conveyance instead of a contract, a landlord had no duty to mitigate damages resulting from a tenant’s wrongful termination of a lease. A landlord could thus recover the full value of rents that were due and unpaid at the time of the suit. However, under the common law, a landlord could not sue a tenant for rents due in the future because there was always a possibility that the tenant might pay the rent when it was due.
i.e. you can only sued for past rents due, but you have no duty to mitigate and thus can sit around, wait for lease period to end, then sue for the all the past due rent.
Caveat Emptor
Let the buyer beware. Common law approach that a home builder makes no implied warranties regarding the condition of the premises. This has been replaced with a implied warranty of workmanship/latent defects for sellers who are also builders
Implied Warranty of Latent Defects
Implied Warranty of Workmanship that Applies to Builder Sellers. Recognizes the superior position of the builder to recognize defects in the construction of a home. Courts are split to whether this applies to only parties with privity with the builder seller or not.
Default Rule of Subject to/ Assume the mortgage
Default is that without express language, the buyer will take subject to the mortgage. Some jurisdictions, however, allow for buyers to impliedly assume a mortgage and thus make themselves personally liable for the morgage.
Adverse Possession Title
Where an adverse possessor acquires title by adverse possession, the nature of the acquired title is no greater than the title of the holder of the cause of action who was barred by the running of the statute of limitations.
An adverse possessor also cannot claim title to an easement unless the adverse possession interfered with the rights of the easement holder.
Nonconforming Use
Zoning ordinances are generally constitutional and do not require compensation as long as they do not constitute takings. To avoid a taking, most zoning ordinances include provisions to grandfather-in
existing uses that do not conform with the terms of the new ordinance. But such provisions do not generally permit the expansion of the nonconforming use.
Optional Future Advances Exception
The general rule is that creditor’s take priority in the order in which they make loans. But where a creditor does not immediately record her loan, this analysis may be changed based on the particular recording act at issue. There is an exception to the general rule for optional future advances. An optional advance is one that a creditor need not make. Typically, each optional advance is treated as a separate loan.
