real property Flashcards
tenancy in common
default estate created when land is conveyed to two or more people
each owner owns undivided interest in the property and has right to use and enjoy entire property. interest passes by bequest or intestacy - no right of survivorship
joint tenancy
created when 4 unities are present –> time, title (same instrument), interest and possession
must have clear express intent to create JT with right of survivorship
joint tenancy severence
when one joint tenant unilaterally transfers interest in his ownership, JT severed and tenants hold as TIC
if there are more than two JT, the JT remains among the other JT that did not transfer
mortgage:
title theory jxn –> severs JT
lien theory –> does not sever JT
if one JT leases –> Maj: severed JT
co-tenant entitlement to rent, repairs, and improvements
rent from co-tenant = an out of possession co-tenant does not have right to receive rent unless otherwise agreed or wrongfully ousted
rent from third party = co-tenant entitled to share of rent from third-party
repairs = co-tenant is entitled to reimbursement for costs of necessary repairs paid for unless there was wrongful ouster
improvements = co-tenant not entitled to reimbursements for improvements on property unless otherwise agreed but improving co-tenant entitled to downside risk or upside gain when property is sold
types of leasehold interests
a lease grants present possessory interest in real property for limited period of time.
1. tenancy for years - lease for fixed period of time automatically terminated after period ends
2. periodic tenancy - lasts for an initial period, then automatically continues for additional equal periods until terminated with proper notice
termination requires written notice at least a full period in advance, or if period is yearly, 6 months’ notice
3. tenancy at will - continues until either party terminates it; usually created by express agreement
termination requires notice & reasonable time to quit the premises (some states, no notice is required)
tenant duties
duty to pay rent: runs with land. if tenant remains on land and does not pay landlord can evict tenant or allow tenant to remain on land and sue for damages
if tenant abandons and doesn’t pay rent, landlord may have to take reasonable steps to mitigate losses
hold over tenant
if tenant remains in possession after lease ends, the landlord may evict or hold the tenant over
an implied month-to-month lease is created with identical terms. if tenant is informed of rent increase before the end of lease, a higher rent applies.
duration:
modern view –> month-to-month
common law –> term is equal to OG tenacy period
implied warranty of habitability
LL must provide a place to live that is habitable (reasonably suitable for human needs)
- sometimes also implied in commercial leases.
if warranty is breached tenant may:
- move out and terminate lease
- withhold or reduce rent
- repair issue or defect and deduct cost from rent or
- remain on premises and sue for damages
constructive eviction
every lease has implied covenant for quiet enjoyment hat prevents LL from interfering with tenant enjoyment and possession of land. this is breached when tenant is constructively evicted
constructive eviction occurs when
- LL breached duty to tenant
- breach caused loss of the substantial use and enjoyment of premises
- tenant gave LL notice of condition
- LL failed to remedy AND
- tenant vacated premises
* *tenant may seek damages, terminate lease, and avoid rent for time constructively evicted
residential leases»_space; LL has duty to repair common areas and warn of latent defects that create risk of serious harm that LL knows of or should know of
commercial leases»_space; LL has no duty to repair unless specified in lease agreement
LL duty to mitigate
Common law»_space; LL NO duty to mitigate
maj»_space; impose duty to take reasonable steps to mitigate losses, but does not have to be successful to recover damages
assignment of lease
when the tenant transfers ALL remaining lease to third-party
- freely assignable unless lease states otherwise
- assignment cannot be for longer period than remaining lease term
- liable for covenants that run with land
liability for rent/breach:
assignee»_space; liable to LL for rent and all other covenants that run with land (privity of estate)
assignor/OG tenant»_space; remains liable for rent (privity of k) unless novation
LL»_space; maintenance obligations runs with land (privity of estate)
LL consent for assignment: if lease requires consent, it must be obtained. LL waives right to enforce a provision prohibiting assignment if he accepts rent from assignee
if lease is silent on consent»_space; maj - LL may withhold consent for any reason; some states - LL must have reasonable basis for withholding consent
sublease
when T transfers only some of the remaining lease
- T may freely sublet unless provision of lease prohibits
- sublease cannot be for longer than remaining lease term
sublessee is not liable to LL for rent or other covenants (no privity of estate)
OG tenant remains laible to LL for rent (privity of k)
surrender of lease
an agreement to end lease early
LL must clearly accept surrender of lease unless otherwise agreed
- attempt to end lease early does not constitute surrender unless LL clearly accepts
if LL accepts surrender»_space; T duty to pay rent after acceptance ends
if LL does not accept»_space; T is deemed to have abandoned and is liable for damages
termination of real covenant
merger, written release, or condemnation of burdened property
real covenant
non-possessory interest in land that obligates holder to either do something or refrain from doing something
runs with land at law - diff req. depending on benefit/burden
remedy = damages
can be restrictive – these are like negative easements but you can restrict them from doing more than light, air, water, etc., and can be created in more ways than writing
enforcing benefit of covenant
WITV writing intent touch and concern vertical privity (only absent if acquired by AP)
enforcing burden of covenant
“WITHN”
writing
intent to run with land
touch and concern (restrictive = must restrict owner in use of land/affirmative = required to do something that increases obligations)
horizontal privity (OG parties shared some interest other than covenant - i.e., landlord/tenant; grantor/grantee, etc.)
vertical privity (non-hostile nexus b/t OG covenant party & successor, i.e., will be present absent AP)
notice
notice
actual - knowledge
constructive - recorded notice
inquiry - inspection of records would reveal it
equitable servitude
a covenant that equity will enforce if the burdened estate had notice of the covenant regardless of whether it runs with land
remedy = injunction
requirements to enforce equitable servitude
must have
- writing satisfying SOF
- intent for servitude to be enforceable
- servitude touches and concerns the land (makes land more useful or valuable)
- notice
common scheme or plan doctrine
courts will imply reciprocal restrictive covenant on land parcels where there is no writing or absent from deed where it is in subdivision sold by developer only if
- developer had common scheme or plan that all parcels would be subject to restriction at time sold AND
- land owner had notice of restriction (can be AIR or obvious from looking at subdivision)
only apply to negative covenants and equitable servitudes
tort liability LL
CLAPS
Common areas: reasonable care
Latent: disclosure
Assumption of repairs: negligence standard
Public use: known defects LL is aware for public use and tenant is unlikely to repair
Seasonal/short-term lease of furnished home: liable for defects causing harm
some courts hold LL liable for injuries resulting from negligence where LL had notice of defect and opportunity to repair it
obligation of common interest community
common interest community is development of individually owned lots that have an obligation to
- pay for/contribute maintenance of the property held in common or
- pay dues or assessments to an association that maintains the neighborhood and/or property
i.e., condos, HOA, co-ops
residents and successive owners are subject to recorded obligations (restrictive covenants) that run with land
easement
non-possessory interest in the use of someone else’s land
diff from covenant – covenant restricts you or requires you do something on your OWN land
types of easements
in gross»_space; benefits specific owner enjoyment - does not pass to subsequent owners unless easement is for commercial activity (requires one party)
appurtenant»_space; benefits any owner’s enjoyment and does pass to subsequent owners with notice (requires two parties - one benefitted and one burdened)
affirmative –> entitled holder to make affirmative use of servient estate
**affirmative easements take two parties and can be created in other ways than express writing
negative –> entitles holder to restrict the servient estate from otherwise permissible activities
can only prevent light, air, subjacent/lateral support, or water stream by express grant
**restrictive covenants are used more than negative easements to prevent activity on land
ways to create a negative easement
writing signed by grantor
ways to create an affirmative easement
by grant»_space; requires
- writing signed by grantor
- identify land and parties involved and
- indicate grantor intent to convey easement
scope: use agreed upon
prescription»_space; created when possessor’s use of land is
- open and notorious
- continuous
- hostile (without permission from land owner) and
- for statutory period
scope: actual usage during statutory period
implication»_space; established when
- single tract of land is divided by a common owner
- pre-existing use by grantor is established prior to division
- use was continuous and apparent indicating that it was meant to be permanent and
- the use is reasonably necessary for owner use and enjoyment of the land conveyed
scope: prior use
exceptions: easement may be implied without prior use where:
- common scheme plan/subdivision
- profit a prendre: holder has implied easement to pass over land surface as reasonably necessary to extract materials
necessity»_space; created if
- land owned by one owner is subdivided and
- the easement is essential to the use b/c no other ingress is available
scope: limited to remedying the necessity
termination of the easement
END CRAMP
- estoppel - when servient estate owner reasonable relies on assurance that easement will not be enforced
- termination of necessity
- involuntary destruction of servient estate
- condemnation of servient estate
- written release
- abandonment - physical action showing intent to never use easement again
- merger of properties (separation after merger does not revive easement)
- prescription
license
privilege to use anothers land in a particular way
doesn’t have to be in writing
may be revoked at any time by licensor, but licensor may be estopped from revocation if licensee invested substantial money in reasonable reliance
**NOT an interest in land
cannot be assigned or transferred
profit
gives holder the right to take natural resources from the land of another
can be terminated through misuse or overuse of resources on estate
**can be in gross or appurtenant
in gross = doesn’t serve a dom. estate and can be transferred without transfer of property
appurtenant = benefits dom estate and cannot transfer independently - must transfer with transfer of land
fixture
personal property affixed to the land so that it becomes part of the land
whether it is so incorporated that it loses its identity or its removal would cause considerable damages to property
the more incorporated, the more likely it is a fixture
trade fixture exception: an item attached for tenant’s trade or business is not fixture unless removal causes sub damage to property
but the item may become a fixture if it is not removed before end of lease term
adverse possession
allows possessor to acquire title to land without conveyance
requires possession to be
- continuous for statutory period
- open and notorious - use would put true owner of land on notice
- exclusive
- actual - possess the land as true owner would and
- hostile under claim of right (w/o owner consent)
adverse possession aggregation or tacking
adverse possessors in privity may aggregate their years in possession to meet statutory period
privity»_space; exists when land is voluntarily transferred to another
SOL does not run against future interest holder until the interest becomes possessory
must quite title before you can convey the property - you do not have title to the property under AP even though you “own” it
constructive adverse possession
if person take possession of portion of land under color of title (invalid deed) the adverse possession extends to the entire portion of the land described in deed or title
land sale k requirements
k must
- meet SOF
- describe property
- identify parties
- contain purchase price and
- be signed by grantor/grantee (depending on who enforced against)
merger doctrine: once deed is delivered & accepted, the land sale k merges with the deed - result is that rights under k are extinguished and buyer may only sue upon deed
some courts»_space; do not apply merger doctrine if it does not carry out probable intent of parties
warranty of marketable title
the seller has duty to convey marketable title to buyer. this ensures title is free from any close and not subject to adverse claim
title is unmarketable if the property has substantial defect, such as
- defect in record chain of title and/or
- encumbrance»_space; mortgage, lien, restrictive covenants, easement, adverse possession, zoning violations
* *zoning RESTRICTIONS do not make it unmarketable
exception: if an easement benefits the land and is visible or known to the buyer, it is not an encumbrance
if seller cannot convey marketable title at closing, the buyer may withdraw without penalty
buyer may waive defect - if buyer waives, seller cannot cancel k
damages for breach of marketable title
measured by reduced value of land
courts are divided on whether damages are recoverable if encumbrance is known or obvious
doctrine of equitable conversion
splits ownership b/t buyer and seller once the land sale k is signed
buyer»_space; equitable title of property
seller»_space; legal title, and holds property in trust for buyer
risk of loss:
maj: risk of loss transfers to buyer upon signing k
min: seller bears risk of loss unless buyer has possession or title to the property at time of loss
home builder implied warranty
protects buyers of newly built homes against latent defects and warrants home is safe and fit for human habitation at the time of sale
latent defect = a defect that could not have been discovered with reasonable inspection
breach: allows buyer to recover damages discovered within reasonable time for defective construction or construction not performed in workmanlike manner (accepted norms of industry)
subsequent purchasers =
some state» requires privity of k with home builder
others»_space; warranty applies b/c subsequent buyer is in same vulnerable position
valid deed requirements
deed must be lawfully executed and delivered
lawful execution requires
1. signed by grantor
3. identify parties
4. describe property
where deed does not identify g/ee, g/tee must fill in their name to be valid
delivery = requires intent to be bound by conveyance
intent will not be found if grantor expressly reserves right to revoke the deed or gives instruction to only deliver the deed upon death; present intent controls, physical delivery not required
recording of notarized deed is PF evidence of delivery
when deed is unconditional on its face and given to grantee, any additional oral conditions are not valid and will drop out
**does not apply where conditions are given with deed to third party - i.e., deliver to x upon x condition…
general warranty deed
present covenants
- seisin - rightful owner
- right to convey and
- covenant against encumbrances
future covenants
- warranty to defend against any third party claims to title
- quiet enjoyment - to not be bothered by third party claim to title (only applies where g/tee is evicted by 3d party w/ paramount title)
- further assurances - to do whatever reasonable to perfect title
enforcement of covenants
common law: present covenants are not enforceable by remote grantees
some states: will enforce the covenant against encumbrances if the remote grantee did not have notice of encumbrance
special warranty deed
warrants seller has not breached the covenants of title during the ownership
- seller has not previously conveyed the property and
- no encumbrances against title made by seller
quitclaim deed
contains no warranties or covenants
grantor not liable for any defects
estoppel by deed
if grantor conveys title to real property before he owns it, the title will automatically vest in the grantee as soon as grantor acquires title
chain of title
shows all transfers of land
2 indexes – one organized by grantors and one organized by grantees
notice statute jxn
subsequent BFP (no notice + pay value) will prevail over prior grantee that failed to record
race statute jxn
whomever records first prevails (notice irrelevant)
race-notice jxn
a subsequent BFP is protected only if he records before the prior guarantee
shelter rule
a person who purchases land from BFP receives the same status and rights as BFP
BFP
takes real property without notice of prior conveyance and pays valuable consideration
does not include gifts or bequests
title insurance - owners vs. lender policy
insures good record title of property exists as of policy date and agrees to defend if litigated
owners policy: protects owner of insurance & does not run to subseq purchasers
lenders policy: follows any assignment of mortgage – policy ends when mortgage is paid off
mortgage party rights
maj: lien theory»_space; mortgagor has title and right to possession absent foreclosure
title theory»_space; mortgagee has title to property during loan term, not mortgagor-borrower
mortgage requirements
- writing
- signed by party to be charged and
- reasonably identify land
purchase money mortgage
used by the buyer/borrower to purchase real property, and the seller is the lender who secures the mortgage on the property
priority over all other junior and senior mortgages
future-advance mortgage
loan by which the lender may provide future payments under original loan
– lender secures the mortgage for entire amount the loan, including future advances
obligatory vs. optional future payments
obligatory»_space; lender has duty to advance funds regardless of the situation
options»_space; lender has discretion whether to make future advances
priority:
future payments are obligatory»_space; all payments are party of OG loan and have priority over later liens
future payments optional»_space; the future payments do not have priority over liens recorded before payment is made
redemption in equity
at any time prior to foreclosure sale, mortgagor can redeem property by paying full amount due
statutory redemption - the right to recover land after foreclosure remains by paying entire sale price
equitable redemption - right to recover by paying amount overdue plus interest at any time prior to foreclosure sale unless there’s acceleration clause
deed of trust
similar to mortgage but involves 3 parties
- borrower
- lender and
- third-party trustee who holds title to the property until the loan is paid off
* *title is transferred to the purchaser once the loan is paid
assumption of mortgage
may be express or implied
express»_space; occurs if there is an express agreement for grantee to take the real property and continue making mortgage payments
implied»_space; only allowed in some states - occurs if there is no express agreement, grantee/buyer pays the seller only the equity on home and grantee continues to make payments to lender on the balance of mortgage
if buyer assumes mortgage, he is primarily and personally liable on mortgage and the seller remains secondarily liable
if a buyer takes real property subject to seller’s mortgage he is not personally liable on the mortgage, but a duly recorded mortgage remains on the land and mortgagee (lender) may foreclose on the mortgage
foreclosure order of preference
extinguishes all junior mortgages
order: proceeds from foreclosure sale are used to pay off debts in this order:
1. atty fees and expenses associated with the sale
2. debts owed to lender
3. any amount left over goes to debtor
deficiency judgment
lender may seek a deficiency judgment against the debtor if the proceeds are insufficient to satisfy the mortgage debt
transfer of mortgage note
some states require that the mortgage note be assigned along with the mortgage
other states allow the note to automatically follow the mortgage when it is properly assigned, even without notice to mortgagor
a mortgagor is not liable to an assignee of he mortgage note for any payments made to assignor if the mortgagor pays assignor and never received notice of assignment
validity of zoning and land-use regulations
zoning and land use regulations are allowed when it reasonably protects the health, safety, or general welfare of community
variance
an exception to zoning ordinace
two types: use and area
a variance application may be granted if property owner shows he will suffer hardship b/c of the ordinance and variance will not damage or harm the public
previous use of property non-conforming to zoning/land use reg
allows a landowner to continue his use of land in violation of a later enacted zoning law (applies if use was originally legal)
the non-conforming use must be continuous otherwise it loses protection
changes to non-conforming use property
- insubstantial changes and reasonable alterations are permitted
- substantial changes that enlarge, alter, or extend non-conforming use are not allowed
choice of law property
apply the law of state where property is located.
rest. 2d»_space; it is presumed that the situs has most significant relationship
rest. 1st»_space; apply state law where property is located
interest analysis»_space; the state law where the property is located unless another state has greater interest
if the land is merely incidental to a k, then apply choice of law rules for k
fair housing act
the FHA prohibits discrimination in housing-related activities based on person race, color, religion, sex, national origin, disability, and/or familial status unless deemed senior housing
FHA exceptions: does not apply to:
- owner occupied buildings with no more than 4 units or
- single-family houses sold or rented by the owner without the use of an agent as long as private landowner does not own more than 3 homes
discriminatory advertisements are prohibited under FHA even if falling into an exception
equitable mortgage
If a deed is given for security purposes rather than as an outright transfer of the property, it will be treated as an “equitable” mortgage and the creditor will be required to foreclose it by judicial action like any other mortgage.
cumulative zoning vs. noncumulative zoning
cumulative = hierarchy of uses where single-family home is highest use followed by other uses – land that is zone for particular use may be used for the stated purpose and any other HIGHER use
non-cumulative = land can only be used for what it is zoned for
lateral support
ownership of land includes right to have land supported in natural state by adjoining land; owners can be liable for excavations that cause damage to adjacent land
land in natural state - strict liability
building on land - for D to be strictly liable for damages to buildings, P must show his land would have collapsed even in its natural state due to D excavations
negligence - D is negligent in excavation, his liability is for loss to adjacent land and buildings even if it would not have collapsed in natural state
subjacent support
underground structures must support surface structures existing when subjacent estate was created
strict - liable for failure to support surface land and preexisting surface structures
negligence - subjacent owners are negligent for failure to support subsequently constructed buildings
riparian doctrine
water belongs to those who own land bordering the watercourse
maj: reasonable use theory - owners share rights to reasonable used and are liable to other owners if their use unreasonably interference with other owner use
balance utility of use vs. gravity of harm
natural uses always prevail over artificial uses
prior appropriation doctrine
water rights acquired by actual use - priority of beneficial use determines the rights to water
