QUICK STUDY Flashcards
Adverse Possession Elements
- actual
- exclusive
- open and notorious
- adverse and hostile
- continious.
Finders? What Kind of Property Can Be Found?
And who gets to keep
- abandonned - finder
- mislaid - property owner
- lost - finder
- treasure trove
What Kinds of Gifts Are There?
- Intervivos - IRREVOKABLE
- Gift Causa Mortis
- Testamentary
Elements of Intervivos gift
- donative intent
- delivery (manual, constructive, symbolic)
- acceptance
Elements of Gift Causa Mortis
- donative intent
- delivery (manual, constructive, symbolic.
- acceptance
- made in anticipation of death
- death (sometimes can be revoked if the death doesn’t actually happen).
What Kinds of Concurrent Ownership?
- tenancy in common- default
- joint tenancy- must be expressed “w/ right of survivorship”
Elements of Joint Tenancy
- 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)
Severance- JT
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.
What is partition and what kinds are there?
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.
How can we prove that a landlord is discriminating (which is a violation of the fair housing act?)
- must prove that they are a protected class
- that they applied and were qualified
- they were rejected
- that the property is still vacant.
What kind of Non-Freehold Estates are there?
- 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.
What duty does a tenant have to a landlord. and what is a defense to getting out of that duty?
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.
constructive eviction- what counts as wrogful conduct?
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).
implied covenant of quite enjoyment
PROMISE THAT THE LL MAKES TO THE TENANT TO NOT WRON GFULLY INTERFERE WITH THE TENANTS POSSESSION.
- This means no physical eviction
Implied warranty of habitability
+ elements
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.
Implied warranty of habitability- remedies
Tenant can
- withhold rent
- repair and deduct.
- sue for damages.
- terminate the lease
What ways can we end a tenancy?
- 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.
Sales
We have three elements of the sale
- purchase contract
- merger
- closing
we will focus on the purchase contract
purchase contract
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.
FINANCING - first big thing
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.
Theories of Mortgage
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.
Two kinds of mortgage
- 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.
FINANCING- Second big thing
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.
what should a borrower know in re a foreclosure?
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.