Real Property Flashcards
Installment Contracts: Forfeiture Clauses
In installment contracts, forfeiture clauses allow a vendor to foreclose on the contract upon a late payment. But if a vendor has accepted late payments in the past, they are said to have waived strict performance.
The Four Unities
At common law, the unities of time, title, interest, and possession are required to create a joint tenancy. The unity of time requires that the interest of each joint tenant vest at the same time. The unity of title requires that all joint tenants acquire title by the same instrument. The unity of interest requires that the interest of each joint tenant be of the same type and duration. The unity of possession requires that each joint tenant have the right to possession of the whole. If these four unities are not present, a joint tenancy cannot be created at common law. Instead, a tenancy in common results.
Requirements for Benefit to Run with Land
A real covenant is a written promise to do or not do something on the land. The benefit of the covenant will run with the land if: 1. The covenanting parties intended that successors in interest be benefitted by the covenant; 2. There is vertical privity between the covenantee and her successor in interest; and 3. The covenant touches and concerns the land (i.e., it benefits the covenantee and her successor in their use and enjoyment of the benefited land).
Co-Tenants: Rent Profits
a co-tenant in possession need not share profits gained by her personal use of the property with co-tenants out of possession unless there has been an ouster or agreement to the contrary. An ouster occurs when one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part of the whole of the property. A claim of right to exclusive possession can constitute an ouster, but mere personal use of the property in a manner that benefits or generates profits for the co-tenant in possession does NOT constitute an ouster. However, if the co-tenant in possession rents out the property to a third party, she must account to the co-tenant out of possession for his share of the net rents (after deducting operating expenses for the rental property).
Purchase Money Mortgage (PMM)
A purchase money mortgage (“PMM”) is a mortgage given to (i) the vendor of the property as a part of the purchase price, or (ii) a third party who lends funds to allow the buyer to purchase the property.
Tenancy from Invalid Lease
A tenant who goes into possession of the premises under an invalid lease and pays monthly rent is a periodic tenant. A periodic tenancy continues from period to period until terminated by proper notice by either the landlord or the tenant. If a lease is invalid (e.g., because it does not satisfy the Statute of Frauds), but the tenant nonetheless pays rent periodically, those payments will create a periodic tenancy by operation of law.
Public Acquisition of Prescriptive Easement
The process for acquiring an easement by prescription is analogous to acquiring title to property by adverse possession, except that the use need not be exclusive (i.e., the user may share the use with the owner or other easement claimants). Adverse use means a use made without the landowner’s permission. Thus, if the public uses the land at the landowner’s invitation, the public will NOT acquire a prescriptive easement.
Affirmative Easement
By granting an affirmative easement across her land, a landowner grants a right to use that portion of her land. An easement is a nonpossessory interest in land. The holder of an affirmative easement has the right to use another’s land but has no right to possess and enjoy the land; that is, ownership of the land itself does not pass.
Promissory Restraint
A conveyance from O “to A for life, and A covenants not to transfer her interest to anyone” contains a promissory restraint. A promissory restraint provides that the grantee promises not to transfer her interest. Promissory restraints on life estates are valid.
Government Condemnation
If the government condemns all of the leased land, the tenant’s liability for rent is extinguished, and the tenant MAY BE entitled to compensation for the taking, absent a lease provision to the contrary. Because both the leasehold and the reversion merge in the condemnor, the lease is terminated. Thus, the tenant’s rent liability does NOT continue.
Equity of Redemption
The equity of redemption gives the borrower the right to free the land of the mortgage by paying off the amount due, plus any accrued interest, at any time prior to the foreclosure sale. If the borrower has defaulted on a mortgage with an acceleration clause, he must pay the full balance in order to redeem.
Holdover Tenant
When a tenant continues in possession after the termination of her right to possession, the landlord has two choices of action: He may treat the hold-over tenant as a trespasser and evict her under an unlawful detainer statute, or he may, in his sole discretion, bind the tenant to a new periodic tenancy, in which case the terms and conditions of the expired tenancy apply to the new tenancy. Unless a residential lease is involved, a year-to-year tenancy results from holding over if the original lease term was for a year or more. The new tenancy has the same terms as the original tenancy unless the landlord notified the tenant before termination of the original tenancy that occupancy after termination will be at an increased rent.
Assignment: Subsequent Liability
An assignment does not release the tenant from his contractual obligations to the landlord; thus, the baker is still liable for all of the lease provisions.
Covenants: Common Driveway
A covenant at law will run with the land and be enforceable against subsequent grantees if: (i) the contracting parties intended it to run; (ii) there is privity of estate between the original promisor and promisee (horizontal privity), as well as between the promisor and his successor (vertical privity); (iii) the covenant touches and concerns the property; and (iv) the burdened party has notice of the covenant. If common driveway owners agree to be mutually responsible for maintaining the driveway, the burdens and benefits of these covenants will run to successive owners of each parcel. The implied cross-easements for support satisfy the horizontal privity requirement because they are mutual interests in the same property. Each promise touches and concerns the adjoining parcel.
Profit
A profit is a nonpossessory interest in land, allowing the grantee to enter on the land and remove resources of the land, in this case, fish and game.
- A privilege to hunt on a parcel is considered a profit!
Fee Simple Subject to Condition Subsequent
A fee simple subject to a condition subsequent is an estate that terminates when the grantor exercises her power of termination (right of entry) after the happening of a stated event. Words such as “upon condition that,” “provided that,” “but if,” and “if it happens that” are usually held to create conditions subsequent, and under most decisions the grantor must expressly reserve the right of entry.
Remainder
A remainder is a future interest created in a grantee rather than a grantor. A remainder must be expressly created in the instrument creating the intermediate possessory estate. A conveyance from “O to A for life, then to B” creates a life estate in A and a remainder in B.
