Real Property Flashcards
MED
*JOINT TENANCY
A joint tenancy is a conveyance of real property to two or more people that is distinguished by a right of survivorship, whereby the surviving joint tenants automatically take the deceased tenant’s property interest.
Thus, joint tenants CANNOT pass their property interest by will or intestate succession (at death, their property interest automatically passes to the other joint tenants).
To create a joint tenancy, the grantor must clearly express his intent to create a joint tenancy by using survivorship language (e.g., “as joint tenants with a right of survivorship”).
Additionally, the “four unities” (PITT) must be in place to create a joint tenancy:
- Possession. Each joint tenant must have an equal right to posses and enjoy the whole property (also required for tenants in common).
- Interest. Each joint tenant must have an equal share of the same type of interest (e.g., two joint tenants each have a 50% share in fee simple).
- Time. Joint tenants must receive their property interests at the same time.
- Title. Joint tenants must receive their property interest in the same instrument of title.
MED
*SEVERANCE OF THE JOINT TENANCY BY CONVEYANCE
If any of the four unities (PITT) are severed, then the joint tenancy is terminated and the cotenants hold the property as tenants in common. When a joint tenant conveys her interest to a third party, that party takes the property as a tenant in common (clearly destroys the time and title unities).
If there were originally two joint tenants, the conveyance converts the estate into a tenancy in common (i.e., the two tenants are now tenants in common with no right of survivorship). If there were originally three or more joint tenants, the joint tenancy remains among the other joint tenants not involved in the conveyance while the third party is a tenant in common.
MED
*SEVERANCE OF THE JOINT TENANCY BY MORTGAGE
When a joint tenant grants a mortgage interest in the joint tenancy to a creditor, the effect will depend on the jurisdiction:
- In a lien theory jurisdiction (majority view), the mortgage is treated as a lien and does NOT terminate the joint tenancy.
- In a title theory jurisdiction (minority view), the mortgage will terminate the joint tenancy, and the tenants will then hold the property as tenants in common.
MED
*LEASE ASSIGNMENTS
An assignment is a complete transfer of the tenant’s entire remaining term under the lease. In an assignment,
the landlord can collect rent from the assignee or the original tenant.
MED
*LEASE ABANDONMENT
An abandonment occurs when the tenant unilaterally returns possession of the leased premises before expiration of the lease WITHOUT the landlord’s consent.
Here, the tenant will have to continue paying rent until the landlord is able to find a replacement tenant.
If the tenant refuses to pay rent, the landlord is entitled to damages for the difference between the original rent and the rent received from the replacement tenant.
MED
*LANDLORD’S DUTY TO MITIGATE
Under the majority rule, the landlord has a duty to mitigate damages if the tenant abandons the property early or is evicted by making reasonable efforts to re-rent the property to another tenant.
The landlord is entitled to damages for the difference between the original rent and the rent received from the replacement tenant. Under the minority rule, the landlord does not have to mitigate damages.
MED
*IMPLIED EASEMENT BY IMPLICATION
An easement is a right held by one person to use another’s land.
An implied easement by implication is created when:
- A single tract of land is divided by a common owner and a piece of the land is conveyed to another;
- Before the division, the common owner used the single tract of land as if there was an easement on it;
- After the division, the common owner’s use of the conveyed land must be continuous and apparent; AND
- Such use must be reasonably necessary for the owner’s use and enjoyment.
MED
*TERMINATION OF AN EASEMENT (7)
An easement may be terminated by any of the following:
- Release. An easement is terminated if the holder expressly releases it. The release must be in writing and satisfy the statute of frauds.
- Merger. An easement is terminated if the holder acquires fee title to the underlying estate - the easement merges into the title.
- Abandonment. An easement is terminated if the holder demonstrates an intent to never use the easement again through physical action (i.e., requires more than non-use or statements).
- Prescription. An easement is terminated if the holder fails to protect against trespassers for the statutory period.
- Sale to a Bona Fide Purchaser. An easement may be terminated if the landowner sells the property.
- Estoppel. An easement is terminated if the landowner reasonably relies to his detriment on the easement holder’s assurance that the easement will no longer be used.
- End of Necessity. An easement by necessity terminates if it is no longer necessary.
MED
*FIXTURES
A fixture is tangible personal property (i.e., chattel) that is attached to real property in such a manner that it is treated as part of the real property when determining its ownership.
Generally, a chattel is considered a fixture if the owner of real property intends for the chattel to become a fixture by attaching it to the real property.
Such intent is judged by applying an objective, reasonable person standard that examines such factors as:
- The importance of the chattel to the real property;
- Whether the chattel was specially designed for use on the real property; AND
- The amount of damage that removal of the chattel would cause to the real property.
MED
*STRUCTURES BUILT ON REAL PROPERTY
Structures built on real property (e.g., walls) and materials incorporated into a structure (e.g., bricks used in making a wall) become part of the real property.
The owner of the real property is generally also the owner of any structures on the real property (including the materials incorporated into the structures).
MED
*NEW CONSTRUCTION IMPLIED WARRANTIES
The implied warranty of fitness or suitability applies to defects in new construction. It protects against latent defects (i.e., defects that are not discoverable from a reasonable inspection)
and warrants that the new construction is safe and fit for human habitation.
In most jurisdictions, both the initial purchaser and subsequent purchasers may recover damages. In other jurisdictions, only the initial purchaser can enforce this warranty.
MED
*ADVERSE POSSESSION
4 requirements
Adverse possession allows a trespasser in unlawful possession of land owned by another to acquire title to that land if their possession is:
- Continuous for the statutory period (seasonal or infrequent use will suffice if the use is consistent with the type of property being possessed).
- Open and notorious (the adverse possessor must use the property as if they were a true owner - their possession cannot be hidden from the true owner);
- Exclusive (the adverse possessor cannot share possession of the land with the true owner); AND
- Hostile (the adverse possessor cannot have the true owner’s consent to possess or use the property).
MED
*ADVERSE POSSESSION STATUTORY PERIOD ISSUES: TACKING AND DISABILITIES
Tacking. An adverse possessor can tack on the time of possession of a prior adverse possessor to meet the statutory period requirement if the adverse possessors are in privity with one another (i.e., the transfer of land was voluntarily agreed upon).
Disabilities. The statutory period will not run against a true owner who had a disability (e.g., insanity, imprisonment, etc.) at the time the adverse possession begun.
HIGH
**GENERAL WARRANTY, SPECIAL WARRANTY, AND QUITCLAIM DEEDS
After closing, the land sale contract merges into the deed.
Subsequently, any liability must arise out of the deed rather than the contract. There are three kinds of deeds:
- General Warranty Deed. General warranty deeds provide the greatest amount of title protection. The grantor warrants title against all defects, even if the grantor did not cause the defects.
- Special Warranty Deed. Special warranty deeds provide less title protection than general warranty deeds. The grantor warrants titles against defects caused by the grantor.
- Quitclaim Deed. Quitclaim deeds provide the least amount of title protection. The grantor makes no warranties as to the health of the title.
HIGH
**PRESENT COVENANTS IMPLIED IN GENERAL AND SPECIAL WARRANTY DEEDS (3)
There are three present covenants implied in general and special warranty deeds:
- Covenant of Seisin. Warrants that the deed describes the land in question and that the grantor is the rightful owner.
- Covenant of the Right to Convey. Warrants that the grantor has the right to convey the property.
- Covenant Against Encumbrances. Warrants that there are no undisclosed encumbrances on the property that could limit its value.
