Real Property Flashcards
Tenancy Types
Term for Years: Fixed, determined period. If > 1 yr, must satisfy SoF
Termination: no notice required
Periodic Tenancy: Successive or continuous intervals (think monthly)
Termination: notice required, must be equal to length of period. (So if monthly, must be before the first day of the month)
Tenancy at Will: No fixed period of duration.
Termination: Anytime
Tenancy at Sufferance:
Tenant wrongfully holds over expiration of lease. Subject to eviction or, if LL accepts rent, can turn into periodic tenancy
Tenant Duties
Pay Rent Tenant has duty to pay rent, on time, or at the end when T surrenders leasehold interest back to LL
Surrender: A surrender occurs when the tenant returns the premises to the landlord prior to the end of the lease. Upon surrender, LL may accept or reject. If accepted, lease is terminated, no future rent. If rejects, LL retains the right to enforce the lease
Avoid Waste: Grantee of less than fee (life, term) can’t adversely injure future interests. Future interest holders may seek damages, injunction, or reimbursement
* Voluntary Waste: Volitional act that decreases value of estate, intentional/negligent damage.
- Permissive Waste: Failure to take reasonable steps to preserve land, pay taxes, or interest (not principal which does not need to be paid down)
- Ameliorative Waste: Change benefits property. CL: Prohibited. Modern: Okay, if FMV not impared and consent OR permenant change in surronding area
Landlord Duties
Duty to Deliver Possession:
* Majority: Must deliver legal and actual possession.
* Minority: Just legal possession
Duty to Repair: LL cannot burden tenant with duty to repair unless: (1) tenant caused damage; or (2) commercial lease
Implied Warranty of Habitability: Residential only. Landlord has a duty to ensure that leased area is reasonably suitable for human dwelling. Breach of health codes is evidence, but not dispositive.
Tenant must notify of defect and give reasonable time to repair. If not done, can (1) move out and terminate; (2) repair and deduct; OR (3) stay and sue
Covenant of Quiet Enjoyment Landlord must ensure there is no other party that disrupts the possession of the tenant.
Actual: LL removes tenant. If tenant is prevented from possessing or using portion of the leased premises, tenant may seek relief for a partial eviction. Tenant is excused from paying rent entirely if LL is responsible for partial eviction.
Constructive: If the landlord substantially interferes with the tenant’s use and enjoyment, tenant’s obligation to pay rent is excused only if tenant gives notice and vacates property within a reasonable time.
Assignability/Subleasing: Standard: (Majority) Lease may prohibit assignment but only for commercially reasonable reason. (Minority) LL can prohibit on discretion.
An assignment is a complete transfer of tenant’s remaining term (asignee pays the LL, assignor liable). A sublease is for transfer of less than entire duration (subleasor pays LL).
Easements
Easements are a non-possessory property interest.
Easement Types (Pine)
Easement by Prescription: Like AP but no exclusive requirement
Easement by Implication: (if division, implied from existing use if apparent and reasonably necessary)
Easement by Necessity: Granted if estate is “land-locked” and can’t access navigable pathway.
Express Easements: An express easement is created in writing that complies with the Statute of Frauds.
Easement Characteristics
Easments are generally appurtenant, tied to the land, and gives that dominant estate the use of another’s property. It transfers with the land unless terminated. An easement in gross is an easement given to a specific individual and only they have that right.
Easement Scope
When easements are established, they are generally limited to agreed upon use. However, scope may change so long as it is not unreasonable difference or overwhelming burdensome increase.
Easement Termination (NAME - EA)
Easements may be terminated by non-use, abandonment, merger, end of the neccessity, estoppel, or agreement.
License: A license is an oral agreement that lets the dominant estate use land on the servient estate. It is freely revocable unless the dominant landowner substantially improved the area
Covenants & Equitable Servitudes
Covenant: Written promise or contractual limitation to do or not do something. Use for money damages
* Burden to Run: To bind successor of burdened estate, need: (1) Writing; (2) Intent; (3) Notice (Actual, Inquiry, Constructive); (4) Touch and Concern; and (5) Privity (Horizontal (besides the covenant) and Strict Vertical (entire estate transferred)).
* Benefit to Run: For benefitting estate to enforce, need: (1) Writing; (2) Intent; (3) Notice (actual, inquiry, constructive); (4) Touch and Concern; and (5) loose vertical privity.
Equitable Servitude: Written promise or contractual limitation to do or not do something. Use for injunction. Needs: (1) Writing; (2) intent; (3) Touch and Concern; and (4) notice.
Implied Negative Recipricol Servitude: General scheme by subdivider when sale began and notice.
Recording Acts
Mechanism to provide purchaser of land with mechanism to determine whether there is an earlier transaction or encumbrance. If no act, first in time, first in right.
Recording Acts
* Race: First to record wins
* Notice: Protects BFP (so not devisees or gifts) if they did not have notice (actual, inquiry, or constructive).
* Race-Notice: Combines the two
- Wild Deeds: A deed recorded outside the chain of title doesn’t give record notice
Shelter Act: One who takes from a BFP (i.e. a BFP gifts to someone), stands in the BFP’s shoes and can prevail if the BFP would have prevailed
Mortgages & Debtor Remedies
Mortgage: Writing required, acts as security.
Debtor Remedies: If fail to pay:
* Equitable Right of Redemption: Mortgagor may pay off debt or bring loan current, any time prior to foreclosure. Not waivable
* Statutory Right of Redemption: Some j(x)s allow mortgagor to redeem property w/in fixed period after foreclosure
Foreclosure
Creditor Remedies
* Foreclosure: Lien theory (majority): mortgagee only gets security interest on property until foreclosure. Title theory (minority) mortgagee gets title until mortgage is satisfied or foreclosed, entitlted to possession.
* Foreclosure Priority: (1) Costs of sale; (2) loan principal & interest; (3) PMM; (4) jr interests (first in time or recording); then mortgagor. If money is left, mortgagor and people who “assumed” mortgage liable for deficiency
Zoning
A state may enact statutes to control land use to protect the health, safety, and welfare of citizens. Generally valid as reasonably related to public welfare, not too restrictive, and not discriminatory as to race or particular parcel. Valid ordinace can be challenged by:
Non-Conforming Use: A use that exits at the time of passage of a zoning act that does not conform to the zoning law. Cannot be eliminated, unless it causes harm to community or compensation is paid
Variance: City may grant landowner a variance when a nonconforming use is created.
Area Variance/Spot Zoning - Building to exist in dimension that slightly violates zoning ordinance
Use Variance - Permit that allows operation of a structure for a purpose not permitted by the ordinance. Requires (1) undue hardship; (2) not created by the landowner; (3) unique to property; and (4) no harm to general welfare
Land Conveyances (Contract)
Must meet SoF: (1) writing; (2) defined parties; (3) signed by party to be charged; (4) describes land
Part performance exception of (2/3) possession, payment, or improvement.
Implied Warranty of Marketable Title: Should be free and clear of encumbrances, zoning violations, AP claims (unless stated and accepted).
Equitable Conversion: Buyer takes risk on contract signing, even though closing has yet to occur. Not the case in some j(x) who have reforms.
Deed
Deeds: Requires: (1) parties; (2) in writing and signed by grantor; (3) descibe land; and (4) words of intent.
Deeds must also be delivered (intent to make present transfer) and accepted (presumed unless stated otherwise)
Merger: Contract merges into deed and parties can no longer enforce contract provisions
Damages: Purchase price or difference in value
Defenses: Unclean hands, laches
Lateral/Subsurface/Water Rights
Right to Lateral Support: People have right to have land supported in its natural state by adjoining land
Strict Liability: Adjacent landowner is strictly liable for damages to buildings caused by excavation, only if it shown that the land would have collapsed in its natural state (i.e. the weight P’s buildings didn’t contribute to falling). Else,
Negligence: Regular Torts Analysis
Defenses
Contributory Negligence
Comparative Fault
Subjacent Support: Absolute right to underground support natural land and structures pre-existing when subjacent estate created. Underground occupant (mining co.) is strictly liable for structure damage UNLESS structures built after subjacent structures, in which case only negligent
Water Rights
Riparian Doctrine: Water belongs to landowners bordering water course, no unreasonable interference
Prior Appropriation: Water belongs to state. Can get rights
Surface Water: Landowner can change drainage, but not to hurt another
Groundwater: Right to make rasonable use of water beneath surface, no waste
Concurrent Estates/Co-Ownership Types
Tenants In Common: Only need possession unity. Presumed form of co-tenancy. Ownership interests are freely alienable.
Joint Tenancy: Need the four unities: Possession; Interest; Time; Title (Instrument) & right of survivorship language (upon death, interest passes to remaining JTs automatically).
Can transfer to TiC by self and interests are freely alienable
Tenancy by the Entirety: Like JT but for married people. Need consent before transferring interest.
Present & Future Estates
FSA: Broadest possible type of landownership. A FSA is freely alienable and of infinite duration.
FSD: A durational type of landownership, “so long as,” terminates automatically if breached
Possibility of Revertor
FSSCS: Conditional type of ownership, “To A, but if not a school . . .” Terminates after named event
Right of Re-entry: Must be affirmatively invoked.
FSSEI: Automatically divests to a 3rd party, not the grantor.
Shifting: Future interest in third party that divests a different 3rd party
Springing: Cut shorts grantors interest
Life Estate: Ownership of property for someone’s life. Must maintain property in reasonable state and pay interest on taxes.
Restraint on Alienation: No restraining alienability of property unless (1) for reasonable purpose; and (2) time limited.
Rule Against Perpetuities: Future interest voided if there is a possibility that interest may vest > 21 years after death of measuring life.
* A lot of j(x)s now use “Wait and See,” which uses a 90 years vesting period, rather than measurable life.
Waste
Avoid Waste: Grantee of less than fee (life, term) can’t adversely injure future interests. Future interest holders may seek damages, injunction, or reimbursement
* Voluntary Waste: Volitional act that decreases value of estate, intentional/negligent damage.
- Permissive Waste: Failure to take reasonable steps to preserve land, pay taxes, or interest (not principal which does not need to be paid down)
- Ameliorative Waste: Change benefits property. CL: Prohibited. Modern: Okay, if FMV not impared and consent OR permenant change in surronding area
