QUICK STUDY Flashcards
1
Q
Adverse Possession Elements
A
- actual
- exclusive
- open and notorious
- adverse and hostile
- continious.
2
Q
Finders? What Kind of Property Can Be Found?
And who gets to keep
A
- abandonned - finder
- mislaid - property owner
- lost - finder
- treasure trove
3
Q
What Kinds of Gifts Are There?
A
- Intervivos - IRREVOKABLE
- Gift Causa Mortis
- Testamentary
4
Q
Elements of Intervivos gift
A
- donative intent
- delivery (manual, constructive, symbolic)
- acceptance
5
Q
Elements of Gift Causa Mortis
A
- donative intent
- delivery (manual, constructive, symbolic.
- acceptance
- made in anticipation of death
- death (sometimes can be revoked if the death doesn’t actually happen).
6
Q
What Kinds of Concurrent Ownership?
A
- tenancy in common- default
- joint tenancy- must be expressed “w/ right of survivorship”
7
Q
Elements of Joint Tenancy
A
- Possession- all tenants must have equal rights to possess.
- Interest- must have the same share.
- Title- title must be given by the same instrument.
- Time- must be given at the same time (same day)
8
Q
Severance- JT
A
A JT is not absolute and permanent!! things can be done to turn it from a joint tenancy to a tenancy in common.
- if the shares are conveyed to someone else or passed to someone else.
- if the share is sold to a third party
- If any of the PITT is destroyed.
9
Q
What is partition and what kinds are there?
A
partition- this is when tenants do not want to share the property anymore and they want to end the cotenant relationship- one person may want to sell, etc.
- partition in kind- preferred. ,this is where the property can be evenly split in a way that equally represents their share. this is the preferred method by the court but it usually a bit hard in actuality to split a property evenly.
- partition in sale- this is when a property is sold and the profits are distributed in a fair manner. here, the tenant wanting to sell must be able to prove (1) that partition in kind was pretty much impossible/extremely impracticable, (2) the interests of the parties will be promoted by the sale, and (3) none of the parties will be prejudiced by the sale (prejudice basically means that nothing will get in the way of the cotetnants getting their fair share.
10
Q
How can we prove that a landlord is discriminating (which is a violation of the fair housing act?)
A
- must prove that they are a protected class
- that they applied and were qualified
- they were rejected
- that the property is still vacant.
11
Q
What kind of Non-Freehold Estates are there?
A
- tenancy by years- more like the average tenancy with a lease that lasts by the years and for fixed period of time.
- periodic tenancy- more like a month to month type of tenancy. the rule here is that you can not end the tenancy in the middle of the cycle.
- tenancy at will- this is for as long as both the tenancy and the landlord want- both parties have power over when this can end.
- tenancy at sufferance- the curios case of the holdover tenant.
12
Q
What duty does a tenant have to a landlord. and what is a defense to getting out of that duty?
A
not paying rent.
but there is a defense to this: Constructive eviction: this a kind of defense that a tenant would assert wrongful conduct by the landlord that substantially affected the living arrangements.
13
Q
constructive eviction- what counts as wrogful conduct?
A
this can be an act or an omission.
- failing to live up to one of the promises in the lease.
- failing to conduct needed repairs.
- failing to maintain and control the area.
- breaching a statutory duty to a tenant.
- allowing a public nuisance.
- —– remember here, the landlord is not responsible for 3rd parties behavior, however, if they are able to control it, they have to- like the abortion pro testor case.
- however for this to work, the tenant has to have told the landlord about it and given them reasonable time to fix. on the other hand, if the tenant wants to move forward with a constructive eviction, they can’t stay on teh property for years and years (think about the case with the guy in the video store).
14
Q
implied covenant of quite enjoyment
A
PROMISE THAT THE LL MAKES TO THE TENANT TO NOT WRON GFULLY INTERFERE WITH THE TENANTS POSSESSION.
- This means no physical eviction
15
Q
Implied warranty of habitability
+ elements
A
the tenant has to live up to their duties and provide tenants with bare living requirements and keep them away from defective housing conditions.
- warranty requires that LL maintain bare living requirements and that the premises are fit for human occupation
- tenant must inform LL of defects.
- LL must be given appropriate time to fix.
16
Q
Implied warranty of habitability- remedies
A
Tenant can
- withhold rent
- repair and deduct.
- sue for damages.
- terminate the lease
17
Q
What ways can we end a tenancy?
A
- surrender- mutually agree to end
- abandonment- The tenant leaves before the lease is over. the tenant can be responsible for that rent money but the LL must show that they were diligent in trying to fill up the vacancy.
- evict- (a) LL used to be able to evict for whatever and whenever reason but now they cant just do it because they want to get even because the tenant complained about something. (b) most jurisdictions only allow for eviction through the formal legal process- self help used to be allowed (as long as the LL was entitled to possession and the eviction was peaceful) but self help is NOT allowed anymore.
18
Q
Sales
A
We have three elements of the sale
- purchase contract
- merger
- closing
we will focus on the purchase contract
19
Q
purchase contract
A
4 things we should know here
- must satisfy the SOF (PIC, must be in writing, price must be written, identification of the parties, and clear description of the property. There are two exceptions to the SOF (doctrine of estoppel and past performance)
- marketable title- we do not want to buy a law suit. Focus on what marketable title IS NOT -> (1) the person selling does not even owe the property and they have to pass it down to someone in the future. (2) there are unknown encumbrances.
- equitable conversion and risk of loss- the idea here is that in between the purchase contract and the merger, the buyer is responsible to any damge to the property, while the seller is still in possession. however, buyer will not be responsible if it is sellers negligence.
- duty to disclose. CAVEAT EMPTOR- BUYER BEWARE!!! (1) material things that would alter the value (2) not easily known or readily known by the buyer. (3) psychological things. exception here would be the implied warranty of quality- if property is fir for intended use, teh dveloper may be liable even without the knowledge of the defects.
20
Q
FINANCING - first big thing
A
Mortgage- this is the security of a lender when they give out big money to a borrower.
three components to a morgage.
1. note- borrowers promise to repay the debt
2. the mortgage- the security device that provides security to the note.
3. foreclosure sale- this is a forced sale that will happen if the borrower defaults on the loan. this is how the lender will try and get his money back.
21
Q
Theories of Mortgage
A
title theory- this is when the lender can take possession of the land right away after that first missed payment.
lien theory- this is when the lender has to wait until foreclosure to have the right to possess.
22
Q
Two kinds of mortgage
A
- purchase money mortgage- this is the initial purchase. this is when you are initially aquiring the property.
- future advance morgage- this is a basically like a second mortgage that someone would take out to renew a kitchen or build a pool.
23
Q
FINANCING- Second big thing
A
foreclosure!!! this is the forced sale of the property.
junior interests- WIPES OUT!! TOO BAD SO SAD!
senior interests- DO NOT WIPE OUT (except in the circumstance that the lender did not record)
So, if we have a foreclosure, the profits first got to the initial lender, and then in order of seniority to the junior lenders.
what happens when the foreclosure does not make the lenders whole- DEFICIENCY JUDGMENT!!! this is when they would sue the lender until they are whole.
24
Q
what should a borrower know in re a foreclosure?
A
there are two defenses/ things that could potentially save them:
- state restrictions on deficiency judgment- limited on fair value, and a whole bunch of other unfair stuff.
- right to equity of redemption- basically a second chance for the buyer to buy the property- this is usually not the case though since many foreclosures happen because the borrower cannot afford it.
25
What is an easement?
Nonpossessory right to use the land of another person. think about someone crossing over your land to get access to a road.
there are 5 kinds of easements:
1. express easmement
2. easement by estoppel/ irrevokable license
3. implied easement of past performance
4. easement of necessity
5. easement of prescription
26
express easement
this is an easement granted by a deed. this must be in writing to satisfy the SOF (1) writing (2) parties involved (3) manifest an intent to form an easement (4) describe the exact location of the easement on the servient land.
- what we need is a formal writing- not ok to just send someine a letter telling them to swing over and pick up your kids toy- this is lacking that 3rd element of manifestation of an intent.
27
easement by estoppel/ irrevokable license
^ this is basically the exception to the SOF up there and is a way of getting out of that 3rd element of manifesting an intent to form an easement. This is basically when someone tells you that you are always allowed to use their lake or their bridge- what we need is a good faith reliance that the license would not be revoked.
This is not as strong as an easement.
these are the elements:-
- (1) landowner allows another to use his land, creating a license
- (2) licensee relies in good faith on the license, usually by making physical improvements or incurring significant costs.
- (3) Licensor knows or reasonably should expect reliance to occur.
- (4) Main considers a 4th element- substantial change in position.
28
implied easement by preexitsing use
3 elements must be satisfied here:
1. severance of title to land in common ownership.
2. an existing, apparent and continuous use of one parcel for the benefit of another at the time of the severance
3. reasonable and necessary for the use at the time of severance.
29
Easement by Necessity
This is similar to implied, but we do not need a prior existing use. instead, we need:
1. severance of title to land held in common ownership
2. strict necessity for the easement at the time of severance. when they say strict they are not joining- it literally must be the only way, no matter how illogical, expensive, or impracticable the other means are- the idea here is you can not use this easement if there is another means.
30
Easement by prescription
this is like adverse possession but you are not acquiring title. what you need:
1. open and notorious
2. adverse and hostile
3. continuous
4. (sometimes) must be bounded and defined.
31
Real Covenant v. Equitable Servitude
real covenant- monetary relief
equitable relief- relief by action like an injunction
32
how do you analyze this kind of question- what are the steps
1. remedy? ask whether it is monetary or injunction (rc or equitable sec)
2. what is running, the benefit or the burden? what is in question- what is getting passed down- is it the enforcement (the benefit) or the restriction (burden) that we are questioning if it can be passed down to the next party in line.
33
Real covenents
this is a promise concerning the use of land that benefits and burdens both the original parties to the promise and their successors
six elements must be proven:
1. writing
2. intent to bind successors: look at the agreement- does this say anything about it being passed down to successors?
3. touch and concern: the covenant must "touch and the concern" the land
4. vertical privity- relationship between the original properties (A and B)
5.horizontal l privity: the relationship between original party to the promise and his successor (getting the other letters like C and D involved).
6. Notice: the successor must have notice of the covenant
34
Equitable Relief
this is when we are dealing with injunctions.
we will only need 4 of the 6 elements.
1. writing
2. intent to bind successors
3. touch and concern
4. notice
35
Common Interest Community
this is a planned residential development where all properties are subject to land use restrictions.
- A CIC is typically created by a declaration which has 4 basic parts:
1. Homeowners association
2. CC&R"d - imposes similar restrictions on all land within the CIC (may be enforced as real covenants or equitable servitudes)
3. assessments- requires unit owners to pay monetary assessments.
4. Ownership rights- generally provides that each unit owns a fee simple absolute in his particular unit, an undivided interest in common area and a membership interest in the association.
36
What are the defenses to the enforcement of CC&R"s
1. Unconstitutional- violates a protected right
2. Unreasonable- in violation of public policy, imposes a burden, acting outside of the scope.
3. Abandonment- violations are so great as to lead the mind of the average person to reasonably conclude that the restriction in question has been abandoned. Consider the number, nature, and severity of the existing violation.
4. Changed conditions- Original purpose of the restriction has been materially altered or destroyed by changed conditions, and that a substantial benefit no longer extends to defendants by enforcement of the restriction
- an example of this would be a restriction on a subdivision to be residential only, but then that is no longer suitable because it now fronts a busy commercial street.
37
Zoning
an inherit power of the state, derivative of its police powers. we allow the govt to enact zoning ordinances to reasonably control land use, for the protection of general health, safety, and welfare.
38
Zoning- rational basis test
A law is unconstitutional only if it is "clearly arbitrary and unreasonable, having no substantial relation to the public health, safety , moral, or general welfare."
unless the law discriminates against a suspect class- then strict scrutiny will be used- the law is constitutional only if it is narrowly tailored to accomplish a compelling state interest.
39
Non conforming uses in zoning
Was once a legal use, but is now nonconforming because of a new zoning ordinance. Think of a long operated junk yard and a new ordinance says no junkyards.
Can be eliminated by:
1. amortization (sunset period)- just letting it eb for a little bit and letting is slowly phase out.
2. destruction of the structure or housing use- play with the facts here, does it means substantially destruct or completely destruct
3. If the use is a nuisance- a condition that interferes with the use or enjoyment of property causing unreasonable discomfort or annoyance
4. hassle and squeeze them out- make their lives hell untll they get out.
5. eminent domain- local government aquiring through the constitution.
40
Takings (regulatory takings)
This is basically when a government regulation becomes so much that it almost resembles a taking. Here, a private landowner claims that a govt, although never intended to be a taking, nonetheless has had the same effect.
41
Three part test for Taking (Pen Central)
1. Economic impact- the court looks at the extent to which the regulation has interfered with distinct investment-backed expectations. this involves assessing how the value of the property has been affected by the regulatory action.
2. nature of the government action- this factor considers the nature of the purpose of the government action. a regulation designed to prevent harm to the public can be seen as more justified and less likely to be taken. This is all about the benefits.
3. Interference with reasonable investment-backed expectations- this examines whether the property owner had reasonable expectations for using the property in a certain way that the regulation now prevents.
--- ex: imagine you were plannings something big that would bring in cash, and now those hopes have been crushed due, this diminution of expected investment is what would be assessed here.
42
3 part Per Se Taking Test
These are scenarios where property rights are infringed upon in such a clear cut matter that the balancing test in penn is not even necessary
1. permanent physical occupation- any gov mandated permanent physical occupation of property is a per se taking. regardless of size of area or extent of economic impact. Lorretto case.
2. total regulatory deprivation of value- if a regulation depirves a property of all economic value, it constitutes a per se taking, unless the regulated uses are proscribed by pre existing principles of property law.
3. exactions- requiring a property owner to dedicate a portion of their property for public use as a condition of obtaining a development permit can constitute a per se taking unless there is a Link/“nexus” and “rough proportionality” between the government’s demand and the impact of the proposed development
43
What links together (future interests)
Fee simple x executory interest
Life Estate Remainders
44
what is o's interest?
Life estate- REVERSION
Fee Simple Determinable- Possibility of Reverter
Fee simple subject to condition sub- RIGHT OF ENTRY.
45
Shifting and springing
shifting- divests transferee
Springing- divests transferor
46
What is subject to the RAP
Contingent remainders, executory interests, and vested remainders subject to open.
