Real Property Flashcards
Joint Tenancy: Severance
When one joint tenant unilatrally transfers his ownership interest in the property; the joint tenancy is severed. Tenants then hold the property as tenants in common.
- if JT takes mortgage:
- title: severs jt
- lien: does not sever
- if one JT leases the property:
- most states: severs jt
Types of Leasehold Interests
- Tenancy of Years: lasts for a fized period of time automatically terminated after the period ends
- Periodic Tenancy: lasts for initial period, then automatically continue for additional equal periods until terminated by proper notice.
- created by: express agreement; implication if rent is paid at specific periods; OR law (when a tenant for years remains after termination of the period or lease is invalid)
- Termination: written notice at least a full period in advance
- Tenancy at Will: continues until either partly terminates if; usually created by express agreement.
- notice + reasonable time to quit the premises
Constructive Eviction
Every lease includes an implied covenant of quiet enjoyment that prevents a landlord from interferring with tenant’s quiet enjoyment and possession of the property.
covenant is breached when a tenant is constructively evicted.
occurs when:
- LL breached a duty
- loss of the substantial use and enjoyment
- T gave LL notice of the condition
- LL failed to remedy the condition within a reasonable time AND
- T vacated the premises.
LL duty to mitigate damages
CL-> no duty to mitigate
Most states- imposes a duty to take reasonable steps to mitigate losses
Assignment of a Leasee
When a T transfers ALL of his remaining lease interest to a third party.
- a leases may be freely assigned unless the states otherwise
- an assignment cannot be for a longer period than the remaining lease term.
Liability for Rent/ Breach
- Assignee: liable to the LL for rent and all covenants (privity of estate)
- Assginor (original ten also remains liable for rent (privity of contract)
- LL: maintenance obligations runs with land (privity of estate)
Surrender of Lease
An agreement to end a lease early.
- LL must clearly accept surrender of the lease.
- attempt is not surrender unless LL accepts.
if LL accepts, T duty to pay rent ends
if LL does not accept, T is deemed to have abandoned and is liable for damages.
Easement in Gross and Appurtenant
Easement: a non possessory interes in the use of someone else’s land. Gross: benefits a specific owner’s enjoyment - does not pass
Appurtenant- benefits any owner’s enjoyment - passes to subsequent owners with notice.
Easement Creation: PING
-
Prescription - created when a possesor use of the land is
- open notorious, continous, hostile, AND for the statutory period.
-
Implication - established when:
- common owner; preexisting use; continuous and apparent use; AND reasonable necessary.
-
Necessity: created if:
- land divided by one owner AND the easement (access of land) is essential to use. no other ingress/egress avail
-
Grant:
- writing signed by grantor, id land and parties, AND, indicate grantors intent to convey easement.
Termination of Easement: ENDCRAMP
- Estoppel -
- servient owner reasonably relies on easement not enforced.
- Necessity
- necessity ends
- Destruction
- involuntary destruction of the serv estate
- Condemnation of serv estate
- Release - written
- Abandoment
- intent to abandon + physical action
- Merger
- Prescription
Fixture
- Fixture is personal propert affized to the land dwelling so that it becomes part of the land. (objective intent to determine if fixture)
- Determining Fixture:
- nature of tiem
- way its attached
- damage that would result if removed
- extent to which adapted to property.
Trade Fixture Exception: an item attached for a T’s trade or business is not a fixture unless removal causes substantial damage to the property.
Adverse Possession
Allows a possessor of land ro acquire title to that land.
- Open and notorious - owner would notice
- Exclusive
- Actual - possess land as true owner
- Hostile - w/o true owner’s consent
- Continous for Statutory period
Tacking: APs in privity may aggregate thier years spent possessing to meet statutory period.
Implied Warranty: Home Builder
Protects buyers of newly built homes from latent defects and warrants the home is safe and fit for himan habitations at the time of the sale.
- latent defect: a defect that could not have been discovered by a reasonable inspection.
- BreachL allows a buyer to recover damages discoered within a reasonable time for defective construction OR construction not performed in a workman like manner.
Types of Deeds
- General Warranty Deed - Contains 6 covenants of title.
- Special Warranty Deed- warrants that seller has not breacked the covenants of title during ownership.
- Right to Convey and Covenant Against Encumberances
- Quit Claim Deed- “as is” deed contains no warrantees/covenants
Present and Future Covenants
Present (breached at time of conveyance)
- Seisin - rightful owner
- Right to Convey
- Covenant against Encumberances
Future (anytime after possession)
- Warranty - to defend against any third party claims of title
- Quiet enjoyment - not bothered by a third party claim to title
- Further assurance - to do whatever reasonable to perfect title.
