Real Property Flashcards
Concurrent Estates
An estate in land can be held concurrently by several persons, all of whom have the right to enjoyment and possession of the land.
(3) Forms of Concurrent Ownership
(1) Joint Tenancy - (2) or more own w/ the right of survivorship;
(2) Tenancy by the Entirety - A protected marital interest between spouses w/ the right of survivorship;
(3) Tenancy in Common - (2) or more own without the right of survivorship.
Joint Tenancy
(1) Right of survivorship (Deceased JT’s shares goes automatically to surviving JT);
(2) JT’s interest is alienable inter vivos (Transferrable during JT’s lifetime);
(3) JT’s interest is neither devisable nor descendible (Can’t transfer through a will/pass to JT’s heirs because the share automatically passes to the surviving JT)
How to Create a Joint Tenancy
The Common Law requires (4) unities:
T-TIP
(1) Time (same time);
(2) Title (same deed, will, or other document of title);
(3) Identical w/ equal interests; and
(4) Rights to Possess the whole.
Each JT has identical interests and equal shares.
Severance of Joint Tenancy
(1) Sale;
(2) Partition; or
(3) Mortgage.
Sale Severance of Joint Tenancy
(1) JT may sell/transfer during lifetime (they can sell/transfer without the others knowledge or consent);
(2) When a joint tenant conveys his interest in a joint tenancy to a third-party, that party takes the property as a tenant in common. If there are only two joint tenants, the joint tenancy is severed. However, if there are more than two joint
tenants, the joint tenancy remains, but only among the other
joint tenants.
Partition Severance of Joint Tenancy
(1) Voluntary - Amicable end;
(2) Judicial - In kind (physical division); forced sale (division of proceeds)
Mortgage Severance of Joint Tenancy (2) Types
A mortgage is a lien on title.
(1) Lien Theory (Majority) - Does not sever a joint tenancy;
(2) Title Theory (Minority) - Severs a joint tenancy.
Joint Tenant’s Murdering Another
Under the Uniform Probate Code and modern statues, when a beneficiary unlawfully and intentionally kills a joint tenant, any joint property is transferred into a tenancy in common (TIC)
Tenancy by Entirety
(1) Between married partners only;
(2) Right of survivorship;
(3) Arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise;
(4) Protected form of co-ownership - creditors of only (1) spouse can’t touch this tenancy;
(5) One (1) spouse acting alone cannot sever the right of survivorship by unilaterally conveying to a third party.
(6) Severance - Divorce, death, execution of lien by a joint creditor of both spouses.
*On divorce, the tenancy by entirety becomes tenancy in common (TIC)
Tenancy in Common
(1) No right of survivorship;
(2) Co-tenant owns individual part and right to possess whole;
(3) Can have unequal shares;
(4) Each interest is devisable, descendible, alienable (no survivorship rights between TIC)
Rights and Duties of Co-Tenants in TIC
(1) Possession;
(2) Rent from Co-Tenant;
(3) Rent from a 3d Party;
(4) Adverse Possession;
(5) Carrying Costs;
(6) Reimbursement Repairs;
(7) Unilateral Improvements;
(8) Reimbursement for Mortgage & Tax Payments;
(9) Waste
(1) Possession (TIC)
Each co-tenant has the right to possess all portions of the property but has no right to exclusive possession of any part. If (1) co-tenant wrongfully excludes another co-tenant from possession of the whole or any part, they’ve committed ouster.
*Ouster - Actionable wrong.
(2) Rent from Co-Tenant
An out-of-possession co-tenant
DOES NOT have the right to receive rent from the inpossession
co-tenant, UNLESS the in-possession co-tenant
wrongfully ousted the out-of-possession co-tenant from the
property.
In other words: co-tenant in exclusive p;ossession need not share profits with other co-tentants absent an ouster or agreement to contrary.
(3) Rent from a Third-Party
If an in-possession co-tenant rents
the property to a third-party, the out-of-possession co-tenant
is entitled to his fair share of the rent paid by the third-party.
(4) Adverse Possession
Unless they’ve ousted the other co-tenant, the co-tenant in exclusive possession for the statutory adverse possession period cannot acquire title to the whole to the exclusion of the other co-tenant.
(5) Carrying Costs
Each tenant pays his fair share of the carrying costs (Mortgage and Taxes). Fair share is calculated based upon the co-owner’s individual share in the whole.
(6) Reimbursement for Repairs
A co-tenant is entitled to
reimbursement for the costs of necessary repairs that the cotenant
paid for, UNLESS there has been a wrongful ouster.
The amount of reimbursement is determined by the
percentage share each co-tenant owns in the property (i.e. if a
co-tenant owns a 50% share then the co-tenant is obligated to
pay 50% of the repair costs).
(7) Unilateral Improvements
A co-tenant who makes
improvements to the property is NOT entitled to reimbursement from the other co-tenant(s), UNLESS there is a separate agreement to the contrary.
*At the end of the co-tenancy
(i.e. a partition or sale of the property), the improving co-tenant bears all the downside risk of the
improvements (debit), but also has all of the upside gain. Thus, if the property appreciated because of the improvements, only
the improving co-tenant is entitled to that increase in value.
(8) Reimbursement for Mortgage & Tax Payments
All co-tenants are responsible for their proportionate share of
mortgage, tax payments, or assessments (includes all
payments that could result in a lien on the property if unpaid). HOWEVER, in most states, a co-tenant that is in sole-possession of the property CANNOT recover for such payments unless the payments exceed the reasonable rental value of the property.
(9) Waste
A co-tenant must NOT commit waste. During the life of the co-tenancy, a co-tenant is permitted to bring an action for waste against another co-tenant.
(1) Voluntary - Willful destruction;
(2) Permissive - Neglect;
(3) Ameliorative - Unilateral change increasing value. (Must be able to quantify damages - including those linked to sentimental value)
Partition - Remedy available for JT or TIC
Joint tenant or tenant in common has a right to bring an action for partition.
Partition includes:
(1) Voluntary agreement;
(2) Partition in kind; and
(3) Forced Sale.
*Courts prefer partition in kind but will permit partition by sale when a fair and equitable physical division of the property cannot be made.
Effect of One Concurrent Owner’s Encumbering the Property
Joint tenant or TIC may encumber her interest but may not encumber the interest of other co-tenants. i.e. By mortgage or judgment lien.
Under JT, a mortgage or lien does not sever the JT but a foreclosure will.
Duty of Fair Dealing
A confidential relationship exists among co-tenants; for example, one co-tenant’s acquisition of an outstanding title or lien that may affect the estate is deemed to be on behalf of other co-tenants.
* This is also why it’s difficult for one co-tenant to adversely possess against other co-tenants.
(4) Leasehold or Nonfreehold Estates
(1) Tenancy for years;
(2) Periodic tenancy;
(3) Tenancy at will;
(4) Tenancy at sufferance.
(1) Tenancy for years
(1) Known, fixed period of time;
(2) Termination automatic (on end date);
(3) No notice needed to terminate;
(4) Writing typically not needed if less than (1) year.
(5) Termination upon breach of lease - landlord reserves a right of entry, which allows them to terminate the lease if the tenant breaches (i.e. failure to pay rent)
- Tenancy for years may terminate if the tenant surrenders the tenancy and the landlord accepts. If unexpired term is more than 1 year - SOF requirement.
(2) Periodic tenancy
(1) Continues for successive intervals until properly terminated;
(2) Created expressly;
(3) Created by implication (no mention of duration but rent at set intervals; oral terms of years violating SOF; holdover tenant after lease ends);
(4) Notice of termination must equal length of period so week to week = 1 week; month to month = 1 month, year to year = 1 month (restatement - preferred) or 6 months (CL)
Tenancy at Will
(1) No fixed duration;
(2) Terminable at will of either party;
(3) Creation by an express agreement explicitly indicating that it is terminable at the will of either party;
(4) Can be terminated by either party at any time - but a reasonable time to quit (vacate) is required.
Tenancy at Sufferance
(1) Created when a tenant wrongfully holds over past lease expirations;
(2) Landlord proceeds to recover rent;
(3) Terminates when landlord moves to evict or holds tenant to new periodic tenancy (hold-over doctrine)
Commercial Tenants
Commercial tenants may be held to a new year-to-year periodic tenancy if the original lease term was for one year or more. If the original term was for less than one year, the new tenancy is typically month-to-month tenancy.
Residential Tenants
Residential tenants generally held to a new month-to-month tenancy regardless of the original term. If the landlord notifies the tenant before the lease expires that occupancy after termination will be at an increased rent, the tenant, by holding over, is held to have acquiesced to the new terms.
Holding over equals assent.
Tenant’s Duties
A tenant has two primary duties:
(1) Repair; and
(2) Pay rent.
Tenants Duty to Repair when Lease is Silent
If the lease is silent, Tenant need only:
(1) Maintain the premises;
(2) Make routine repairs;
(3) NOT ordinary wear & tear repairs;
(4) Cannot commit waste.
Three (3) types of Waste Tenant Must Not Commit
(1) Voluntary (Affirmative) Waste - Results when the tenant’s overt conduct damages the premises;
(2) Permissive Waste - Occurs when the tenant fails to take reasonable steps to protect the premises from damage from the elements;
(3) Ameliorative Waste - Occurs when tenant unilaterally alters the leased property, thereby increasing its value. Generally, the tenant is liable for the cost of restoration. Modern exception - permits a tenant to make this type of change if the tenant is a long-term tenant and the change reflects changes in the neighborhood.
Tenant’s Duty to Repair when Express Covenant in Lease
(1) Maintain in good repair/condition;
(2) Common Law - tenant was responsible for any loss to the property including loss attributable to force of nature, such as hurricanes, earthquakes, or lighting;
(3) Majority view - Tenant may terminate the lease if premises destroyed without Tenant’s fault.
Tenant’s Duty to Pay Rent
If Tenant breaches and remain on premises Landlord can:
(1) Evict through the courts; or
(2) Continue the relationship and sue for rent due;
(2) Landlord must NOT engage in self-help (this includes changing the locks, forcibly removing the tenant or removing tenant’s possession).
*Self help is outlawed and is punishable civilly and criminally.
Tenant Breaches but is Out of Possession
If Tenant breaches and Tenant wrongfully vacates with time left on a term of years lease. Landlord can:
(SIR)
(1) Surrender and end lease;
(2) Ignore (minority of states) - do nothing and hold T liable for rent;
(3) Relet - new lease and hold T liable for deficiency. Good faith reasonable effort to try to mitigate.
Rent Deposits
(1) Most states restrict the amount of security deposits to one month’s rent;
(2) Landlords must pay interest on security deposits; and
(3) Allow statutory or punitive damages for a landlord’s improper refusal to return a security deposit.
*Clauses in leases that attempt to avoid these state laws are VOID.
*Landlord is permitted to retain a security deposit for damages actually suffered to the premises as a consequence of the Tenant’s wrongdoing.
Eminent Domain - Condemnation of Leaseholds
If the entire leasehold is taken by eminent domain, the tenant’s liability for rent is extinguished because both the leasehold and reversion have merged in the condemner and there is no longer a leasehold estate. The lessee is entitled to just compensation (FMV of the property)
If the taking is temporary or partial, the tenant is NOT discharged from rent obligation but is entitled to compensation for the taking.
*Eminent domain is the power of the government to take or condemn property for “public use” - very broad. Can be anything that benefits to the public.
Tenant’s Duty to NOT use Premises for Illegal Purposes
Landlord may terminate the lease or obtain damages and injunctive relief if T uses the premises for an illegal purpose.
Landlord’s Duty to Deliver Possession
Landlord has duty to place Tenant in actual and physical possession of the premises at the beginning of the leasehold term.
If at the start of the lease, prior holdover tenant is still in possession, Landlord has breached and new Tenant gets damages.
Implied Covenant of Quiet Enjoyment
Tenant has right to quiet use and enjoyment without interference from Landlord (residential and commercial).
Landlord can breach through (1) wrongful eviction; and (2) constructive eviction.
Wrongful Eviction - Breach of Implied Covenant of Quiet Enjoyment
Wrongful eviction is a breach of the implied covenant of quiet Landlord excludes Tenant from whole or part of premises enjoyment.
(1) Actual Eviction - Landlord excludes the tenant from the entire leased premises. Actual eviction terminates the tenant’s obligation to pay rent ;
(2) Partial Eviction - Tenant is physically excluded from only part of the leased premises. Partial eviction by the landlord relieves the tenant of the obligation to pay rent for the ENTIRE premises, even though the tenant continues in possession of the remainder.
Constructive Eviction - Breach of Implied Covenant of Quiet Enjoyment
Landlord’s breach of duty renders the premises unsuitable for occupancy. T who has been constructively evicted may terminate the lease and may also seek damages.
i.e. every time it rains, the apartment floods.
*Tenant must show:
(SING)
(1) Substantial Interference (chronic/permanent problem);
(2) Notice (T must notify L and L must fail to fix it);
(3) Goodbye (Get out - T MUST vacate).
Acts of Other Tenants
As a general rule, the landlord is not liable to a tenant for wrongful acts of other tenants. But there are (2) exceptions:
(1) Landlord has a duty to abate a nuisance on site;
(2) Landlord must control common areas
Implied Warranty of Habitability
Assures that the premises will be fit for the bare living essentials for human dwelling.
(1) Applies only to residential property;
(2) Premises must be fit for a basic human habitation;
(3) Standard applied - Case Law and Housing Code.
*Does NOT apply to commercial tenants.
i.e. No heat during winter; no working plumbing; no running water
Tenant’s Entitlement when Implied Warranty of Habitability is Breached
Tenant’s option if Landlord breaches:
(1) Move out (does not HAVE to);
(2) Repairs and deduct;
(3) Reduce or withhold rent;
(4) Remain (keep paying full rent) & affirmatively seek damages.
Distinguish Implied Promises
(1) Covenant of Quiet Enjoyment (applies to residential and commercial) - Tenant must vacate to file a claim;
(2) Warranty of Habitability (applies only to residential) - Tenant does not have to vacate.
Retaliatory Eviction
Landlord cannot terminate/penalize Tenant in retaliation for Tenant’s exercise of legal rights.
To overcome the presumption, the Landlord must show a valid, non retaliatory reason for their actions.
Civil Rights Act
Civil Rights Act bars racial or ethnic discrimination in the sale or rental of all property.
Fair Housing Act
The FHA protects tenants and potential tenants from discrimination based on race, color, religion, national origin, sex, or disability, as well as familial status (Except in senior housing).
Prohibited Actions:
(1) Refusing to negotiate, rent, or sell housing, or give mortgage;
(2) Providing different terms for sale/rental;
(3) Falsely representing dwelling unavailable.
Fair Housing Act EXEMPTIONS
EXEMPTIONS:
(1) Owner-occupied building with (4) or fewer units in which persons live independently of each other; and
(2) Single-family homes sold or rented by an owner who owns no more than 30 single-family homes.
Fair Housing Act Reasonable Accommodations
Under FHA, Landlord must permit disabled tenants to make reasonable modifications to existing premises to accommodate their disabilities at the tenants’ own expense.
Landlord must also make reasonable accommodations in rules, policies, and services when necessary to afford a disabled person an equal opportunity to use a dwelling.
Assignment - Transfer of Leasehold
Transfer of entire remaining term of lease. Assignee stands in the shoes of the original tenant in a direct relationship w/ the landlord.
(1) Assignee T in privity of estate - Liable on covenants that run w/ the land;
(2) Original T in privity of contract (but not estate) - Liable for original lease obligations.
Sublease - Transfer of Leasehold
(1) Transfer of part of remaining term of lease. The result of a sublease is that the Landlord and sublessees are in neither privity of estate nor privity of contract;
(2) T1 and T2 responsible to each other;
(3) Relationship between L and T1 remains intact.
Landlord’s Remedies
Landlord may terminate the main lease for nonpayment of rent of breach of other covenants if the lease so states or the power is given by statute.
The sublease automatically terminates w/ the main lease.
Rights of Sublessee
Sublessee cannot enforce any covenants made by the Landlord in the main lease, except a residential sublessee may be able to enforce the implied warranty of habitability against the landlord.
Covenants Against Assignment or Sublease
In the lease, the Landlord can prohibit a tenant from assigning or subletting without the landlord’s prior written approval. A valid covenant against assignment is considered waived if the Landlord was aware of the assignment and did not object.
Once a landlord consents to one transfer by a tenant, L waives the right to object to future transfers by T, unless L expressly reserves the right.
Caveat Lessee (Tenant Beware)
Landlord has no duty to make premises safe, EXCEPT:
(CLAPS) -
(1) Common areas (hallways, stairwells, elevators);
(2) Latent defects;
(3) Assumption of repairs;
(4) Public use rule;
(5) Short-term lease of furnished dwelling.
(1) Common areas
L has a duty to of reasonable care in maintaining all common areas i.e. hallways, stairwells, elevators, etc.
(2) Latent defects
L must WARN a tenant of hidden defects of which the L has knowledge or reason to know.
L’s obligation in tort is a duty to warn, and not a duty to repair.
(3) Assumption of repairs
In tort, L is under no duty to make repairs, once repairs are undertaken, L must complete them w/ reasonable care.
(4) Public Use Rule
L who leases public space and who should know, because of the significant nature of the defect and the short length of the lease, that a tenant will not repair, is liable for any defects on the premises that cause injury to members of the public.
(5) Short-term lease of furnished dwelling
L who rents a fully furnished premises for a short period is under a stricter duty. Such landlords are responsible for any defective condition which proximately injures a tenant.
General Duty of Reasonable Care (Modern Trend)
Many courts now hold that L owes a general duty of reasonable care toward residential tenants, and will be held liable for injuries in tort resulting from ordinary negligence if the L had notice of a defect and an opportunity to repair it.
(1) Defects Arising After Tenant Takes Possession;
(2) Legal Duty to Repair;
(3) Security.
(1) Defects Arising After Tenant Takes Possession
L generally is held to have notice of defects existing before T took possession but is NOT liable in tort for defects arising after T takes possession unless L knew or should have known of them.
(2) Legal Duty to Repair
If L has a statutory duty to repair, L is liable in tort for injuries resulting from the L’s failure to repair or negligence in making repairs.
(3) Security
Some courts hold L liable in tort for tenant injuries inflicted by the criminal conduct of 3d parties in cases where L failed to comply w/ housing code provisions dealing w/ security, maintain ordinary security measures, or provide advertised security measure.
Fixtures
Fixture is a chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty. A fixture passes w/ the ownership of the land and must stay put.
Chattels Incorporated Into Structure
(1) Items are incorporated into the realty so that they lost their identity;
(2) Chattel affixed to realty is a fixture when its removal would cause considerable damage to the premises.
i.e. Plumbing, heating ducts, a furnace.
Ownership of Fixtures
Intention is determined by:
(1) Nature of the article;
(2) Manner of attachment;
(3) Amount of damages that would be caused by its removal, and the adaptation of the them to the use of the realty.
Easement
Grant of nonpossessory property interest entitling holder to use/enjoyment of another’s land.
Affirmative Easement
Right to go on to and do something on another’s land.
Negative Easement
Entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible. Negative easements are generally recognized in (4) categories:
LASS
(1) Light
(2) Air
(3) Support
(4) Stream water from an artificial
Refraining your servient owner (neighbor) to build a high building to block light on your land.
Creation of Negative Easement
Can only be created expressly, by writing signed by the Grantor. There is no natural or automatic right to a negative easement.
Easement Appurtenant
Benefits its holder in his physical use or enjoyment of his own land.
(1) Two parcels of land must be involved;
(2) Dominant tenement derives the benefit; and
(3) Servient tenement bears the burden.
B’s easement appurtenant to B’s dominant tenement.
Easement Appurtenant Transferability
Appurtenant easement passes automatically w/ transfer of the dominant tenement, regardless of whether it is even mentioned in the conveyance.
Burden of Easement Appurtenant Transferability
Burden of the easement appurtenant also passes automatically w/ the servient estate, unless the new owner is a bona fide purchaser without notice of the easement.
Easement in Gross
Confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land.
(1) Holder has personal/commercial advantage unrelated to use/enjoyment of land;
(2) Servient land burdened;
(3) No benefited/dominant tenement.
i.e. Right to place a billboard on another’s lot;
Right to swim in another’s pond; utility company’s right to lay power lines on another’s lot.
Easement in Gross Transferability
Not transferable unless it is for commercial purposes.
Owner of Servient Parcel’s Rights
Owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient.
Creation of Affirmative Easement
There are (4) ways to create an affirmative easement:
PING
(1) Prescription
(2) Implication
(3) Necessity
(4) Grant
(1) Prescription
Easement by prescription may be acquired by analogy to adverse possession:
COAH
(1) Continuous and uninterrupted use for the given statute’s period;
(2) Open and notorious use;
(3) Actual use that need not be exclusive
(4) Hostile use (without servient owner’s consent)
i.e. Continuing to cut across X’s parcel to save time.
If done during the statutory time, now have acquired easement by prescription.
(2) Implication
Easement by implication are created by operation of law; they’re an exception to the SOF.
Two ways to get an easement by implication:
(1) One guy owning land and severing and selling 1/2 but seller has had some sort of use where he has been cutting across both lands (implied by prior use)
(3) Necessity
Easement by necessity can be implied when a Landowner conveys a portion of her land w/ no way out except over some part of the grantor’s remaining land. The owner of the servient parcel has the right to locate the easement.
(4) Grant
Any easement must be:
(1) Memorialized in writing;
(2) Signed by the holder of the servient tenement unless its duration is brief enough to be outside the scope of the SOF (less than 1 year);
(3) Writing must comply w/ all formal requisites of a deed.
Express Reservation (Another Method to Create an Easement)
An easement by reservation arises when a Grantor conveys title to land but reserves the right to continue to use the tract for a special purpose.
Scope of an Easement
Determined by the terms of the grant or the conditions that created it.
If an easement is created but not specifically located on the servient tenement, an easement of sufficient width, height, and direction for the intended use will be implied.
Termination of an Easement
(8) ways to terminate an easement
END CRAMP
(1) Estoppel
(2) Necessity
(3) Destruction
(4) Condemnation
(5) Release
(6) Abandonment
(7) Merger
(8) Prescription
(1) Estoppel
(1) Oral expression of an intent to abandon an easement won’t terminate an easement unless it’s also committed to writing or accompanied by action.
(2) Servient owner materially changes their position in reasonable reliance on the easement holder’s assurances or representations.
(2) Necessity
Easements created by necessity expire as soon as the necessity ends, UNLESS the easement was reduced to an express grant.
(3) Destruction
Destruction of the servient land, other than through the willful conduct of the servient owner, will terminate the easement.
(4) Condemnation
Condemnation of the servient estate by gov’t eminent domain power will terminate the easement. Courts are split as to whether easement holders are entitled to compensation.
(5) Release
Release given by the easement holder to the servient land owner will terminate the easement. Must be in writing.
(6) Abandonment
Easement holder must show by physical action demonstrating the intent to never make use of the easement again.
Stopping use + intent to not return to using it.
i.e. Erecting a structure that precludes her from ever again reaching the servient’s structure.
(7) Merger (Unity of Ownership)
An easement is extinguished when title to the easement and title to the servient land become vested in the same person. (One land owner buys the other servient land)
Even if the title is separated again, the easement is extinguished.
(8) Prescription
A servient owner may extinguish the easement by interfering w/ it in accordance w/ the elements of adverse possession:
C - Continuous intereference
O - Open and notorious
A - Actual
H - Hostile to the easement holder
Servient owner erects a chain link face to preclude easement holder from reaching their parcel of land.
Party Walls and Common Driveways
Courts will treat a wall erected partly on the property of each of two adjoining landowners as belonging to each owner to the extent it rests upon their land.
Courts will also imply mutual cross-easements of support with the result that each party can use the wall or driveway and neither party can unilaterally destroy it.
Creation of Party Walls and Common Driveways
Written agreement is required by the SOF for the express creation of a party wall or common driveway agreement, but an irrevocable license can arise from detrimental reliance on a parol agreement.
Party walls and common driveways can also result from implication or prescription.
Running of Covenants of Party Walls and Common Driveways
If party wall or common driveway owners agree to be mutually responsible for maintaining the wall or driveway, the burdens and benefits of those promises run to the successive owners of each parcel.
License
- Mere privilege to enter another’s land for some delineated purpose
- Not an interest in land
- Revocable at the will of licensor
- Personal to licensee and inalienable
- Any attempt to transfer a license results in revocation by operation of law
Creation of a License
- Writing is NOT required
- NOT subject to SoF
Revocation of License
Freely revocable at will of licensor UNLESS estoppel applies to bar revocation
Licenses - Ticket cases
A ticket creates a freely revocable license
Licenses - Neighbors talking by the fence “B, you can have right of way across my land” Is this oral easement enforceable?
No. If grantor orally grants an easement for more than one year, unenforceable because it’s not in writing. Creates a freely revocable license.
When will estoppel bar revocation of a license?
Only when licensee has invested substantial money or labor or both in reasonable reliance on the licensee’s continuation.
Licensee becomes an easement by estoppel, which lasts until the holder receives sufficient benefit to reimburse him for his expenditures
License coupled with an interest
Irrevocable as long as the interest lasts
Ex. buyer of chattel may enter seller’s land to remove the chattel, or a future interest holder may enter and inspect the land for waste
License - Profit
Profit entitles holder to enter the servient land AND take some resource [soil, substance of soil like mineral, timber, oil] or some product of property [fish/game]
Rules for creating and terminating profits
Same as easements
A profit may be extinguished through SURCHARGE = misuse that overly burdens the servient estate
Covenant
- Written promise to do or not do something related to land
- Contractual limitation or promise regarding land
Real Covenants
Found in deeds and when certain requirements are met they run w/ land at law = subsequent owners may enforce or be burdened w/ covenants
Negative (Restrictive) Covenants
Promise to refrain from doing something related to land
Most convents are restrictive
Ex = “I promise not to build for commercial purposes”
Affirmative Covenants
Promise to do something related to land
Ex = “I promise to maintain our shared fence”
Covenant vs. Equitable Servitude
- Depends on remedy the plaintiff seeks
- If Plaintiff wants $ damages => covenant
- If Plaintiff wants injunction => equitable servitude
Covenant Running with Land
If one tract is burdened by the promised and another is benefited
Key Q to see when a covenant will run with land, I.e., when is a covenant capable of binding successors? when will burden/benefit run to successors?
Always start analysis w/ burden side first – harder for the burden to run than for the benefit to run
Requirements for the Covenant (Burden) to Run
If the following requirements are met, any successor in interest to burdened estate will be bound by the covenant as if they themselves had expressly agreed to it.
“WITHN”
(1) Writing
(2) Intent
(3) Touch and concern
(4) Horizontal and vertical privity
(5) Notice
Writing (Requirement for Burden to Run)
The original promise between A and B must have been in writing
Intent (Requirement for Burden to Run)
The original covenanting parties (A and B) must have intended that the covenant would run (meaning they intended that successors to the originally promising parties would be bound by the covenant)
This can be inferred from circumstances but usually found in language of conveyance itself
Touch & Concern (Requirement for Burden to Run)
Affecting parties’ legal relations as landowners and not simply as members of the community at large
- Restrictive covenants = restrict parcel owner’s use of land
- Affirmative covenants = require holder of servient estate to do something that increases obligation in connection w/ land
Horizontal & Vertical Privity (Requirement for Burden to Run)
(1) Horizontal = nexus b/w original promising parties; requires A and B share succession of estate, meaning at the time the promisor entered into covenant w/ promisee, the 2 must have shared some interest in the land independent of the covenant
** Difficult to establish**
Often present when A and B were each other’s grantor and grantee
(2) Vertical = nexus b/w successor in interest and the originally covenanting party. Requires some non-hostile nexus, such as K, devise, descent. Absent when successor acquired her interest via adverse possession
Notice (Requirement for Burden to Run)
Successor must have had notice of the promise when she took
Under modern recording acts, to be bound by a covenant, a subsequent purchase for value must have had actual, inquiry, or record notice of the covenant at time of purchase
Requirements for Benefit to Run
Does successor have standing to enforce the covenant? If following requirements are met, the promisee’s successor in interest may enforce the covenant
“WITV”
W = writing
I = intent
T = touch and concern
V = vertical privity
Writing (Requirement for Benefit to Run)
The original promise (between A and B) must have been in writing
Intent (Requirement for Benefit to Run)
The originally covenanting parties (A and B) must have INTENDED the benefit would run, intended that successors in interest to the promisee would be able to enforce the covenant
Touch & Concern (Requirement for Benefit to Run)
If promise performance benefits the promisee and her successors in their use and enjoyment of benefitted land, I.e, promise must have affected the parties as landowners
Vertical Privity (Requirement for Benefit to Run)
There must be a non-hostile nexus between original promisee and the successor in interest
Specific situations involving real covenants
Generally, promises to pay MONEY to be used in connection w/ land (HOA fees) and covenants NOT TO COMPETE run w/ land
Racially restrictive covenants are unenforceable
Breach of Real Covenant - Remedies
Money damages from defendant’s general assets
Termination of Covenant
May terminate by:
1. Written release
2. Merger of benefitted and burdened estates or
3. Condemnation of the burdened property
Equitable Servitudes
Promise that equity will enforce against successors of the burdened land REGARDLESS of whether it runs with land at law, unless successor is a Bona fide purchaser
Accompanied by INJUNCTIVE RELIEF
Creation of Equitable Servitude
‘WITNES’
W = writing –> generally, but not always, original promise was in writing (SoF requirement)
I = intent –> the original parties intend that the promise would be enforceable by and against successors
T = touch & concern –> promise affects parties as landowners
N = notice –> subsequent purchasers of land burdened by the covenant had actual, inquiry, record notice of the covenant when they acquired land
ES = equitable servitude
no privity of estate required
Implied Equitable Servitude - General or Common Scheme Doctrine
Exception to the general requirement that the original promise be in writing
Under the common scheme doctrine, court will imply a reciprocal negative servitude, which is an implied equitable servitude.
If a developer subdivides land and some deed contains restrictive covenant while others do not, the restrictive convents will be binding on all parcels provided there was a common scheme o development and notice of the covenants
Elements of Common Scheme Doctrine
(1) When sales began, subdivider had a GENERAL SCHEME OF RESIDENTIAL DEVELOPMENT which included defendant’s lot (the scheme may be evidenced by a recorded plat, general pattern of restrictions, oral representations of early buyers) AND
(2) Defendant had NOTICE of promise contained in those prior deeds when it took
3 Forms of Notice
AIR
A = actual notice –> defendant had literal knowledge of the promise contained in the prior deed
I = inquiry notice –> neighborhood seems to conform to the common restriction
R = record notice –> form of notice sometimes imputed to buyers on the basis of the public recorded documents, so there is a prior deed with the covenant in grantee’s chain of title
What happens if common scheme arises AFTER some lots are sold?
No implied servitude can arise w/ respect to the lots already sold w.o express covenants
Equitable defenses to enforcement
A court will NOT enforce an equitable servitude if:
1) Doctrine of changed conditions –> neighborhood conditions have changed SO much that enforcement would be inequitable; not good enough = piecemeal change / mere pockets of limited change
2) Unclean hands
3) A benefited acquiesced in a violated of the servitude by a burdened party
4) Estoppel
5) Laches
Termination of Implied Equitable Servitude
1) Written release from benefit holders
2) Merger of the benefitted and burdened estates
3) Condemnation of burdened property
Adverse Possession - Elements
Possession for statutorily prescribed time can ripen into title if elements are met (COAH)
(1) Continuous –> for statutory period, intermittent periods of occupancy not sufficient but constant use not required if possession is of a type that usual owner would make, no required to continuously possess by same person, adverse possessor can tack her own possession onto periods of adverse possession of her predecessors. (seasonal)
(2) Open & Notorious –> occupation must be sufficiently apparent to put true owner on notice that a trespass is occurring
(3) Actual & Exclusive –> literal actual occupation by possessor exclusive of parcel’s true owner. Actual possession of ENTIRE parcel is not always required – if adverse possessor enters under color of title, she is deemed to be in constructive possession of all land the deed describes, as long as she’s in actual possession of a rx portion of land
(4) Hostile –> possessor is there w/o true owner’s consent. Permission defeats hostility. Adverse possessor’s true state of mind is irrelevant!
Co-tenants: ouster required (Hostile element)
possession by one co-tenant is not adverse to the other co-tenants voluntarily out of possession b/c each co-tenant has right to possess all property. Co-tenant must oust others or make an explicit declaration they’re claiming exclusive dominion to create adverse possession
Grantor stays in possession: permission presumed (Hostile element)
If grantor stays in possession of land after there conveyance, there presumed to be there w/ permission of grantee/
Claim of right (Hostile element)
A possessor enters claim of right when they reasonably believe the property belongs to them – usually due to invalid deed. Invalid deed does not give possessor permission to be on the land. when someone assumes possession w/ what they mistakenly believe is valid title, the possession is hostile and adverse. Most states use “claim of right” instead of/interchangeable w/ hostile
Running of Statute
Begins to run when true owner Cana first bring suit
Filing of suit will not stop the period from running, however, the suit must be pursued to judgment
Payment of property taxes generally not required (adverse possession)
most states do not require adverse possessor to pay taxes on property, but consider such payment good evidence of a claim of right
