Real Property Flashcards
Covenants: Touch and Concern
To run with the land, the promise must “touch and concern” the land. This means the promise increases the use or enjoyment of the benefited parcel.
Convenants: Privity Requirements
For a burden to run with the land there must be horizontal and vertical privity.
A benefit only requires vertical privity.
Horizontal Privity is privity between the original promising parties.
Vertical Privity requires that the successor now is the holder of the entire interest.
Equitable Servitude
An equitable servitude is similar to a real covenant and the requirements are the same, except there are no privity requirements and the remedy is in equity, rather than legal damages.
Implied Equitable Servitude
A court can imply a reciprocal equitable servitude if the original owner intended a “common plan or scheme” and the purchaser has notice of the scheme. The remedy for a breach is an injunction in equity.
Tenancy Types
YPWS
Tenancy for Years: A tenancy for years is a lease for a fixed period of time.
* * If > 1 yr, must satisfy SoF
* Termination: no notice required - terminates at end date of fixed period.
Periodic Tenancy: A periodic tenancy is one that scontined from one period to the next until one party gives notice of termination. (e.g. monthly).
* Termination: Written notice required, must be equal to length of period. (So if monthly, must be before the first day of the month)
Tenancy at Will: A tenancy at will has no fixed period of duration. and can be terminated at any time.
Tenancy at Sufferance: A tenancy at sufferance is created when a 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
* *Duty to mitigate: * Traditionally, no duty to mitigate. Modernly, there is a duty to mitigate.
Avoid Waste: A tenant must prevent waste and harm to future interests. Grantee of less than fee (life, term) can’t adversely injure future interests. Future interest holders may seek damages, injunction, or reimbursement
* Voluntary Waste: Occurs when a tenant intentiaonlly or negligently causes a decrease in the value of the estate.
* Volitional act that decreases value of estate, intentional/negligent damage.
- Permissive Waste: Occurs when a tenant neglgects the property – may include failure to pay taxes
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Ameliorative Waste: Occurs when a tenant makes substantial alterations to the property that increase the value.
*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
Conditions of Property
* Common law - Under the common law, the tenant takes as is
* Modern view: Landlord must maintain common areas, fix latent defects, and make repairs nonngelgiently.
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
Implied Covenant of Quiet Enjoyment Implied in every lease the landlord warrants that he will not interfere with the tenant’s use and enjoyment of the premises. This can be breached by:
* **Constructive Eviction **- If the premises are virtually uninhabitable for their intended use because of a substantial interference with the property use and enjoyment caused by the landlord or persons acting for him; the tenant must:
* * Give notice to the landlord and give meaningful opportunity to respond
* * Move out within a reasonable time.
* Actual Eviction - An actual eviction occurs when the tenant is excluded from the property.
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).
Assignabilty of Leases
Assignability/Subleasing: 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).
Standard:
(Majority) Lease may prohibit assignment but only for commercially reasonable nndiscriminatory reason.
(Minority) LL can prohibit on discretion.
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
* **Appurtenant: **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.
- **Gross: **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.
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
Termination of an Easement
END CRAMP
An easement may terminate by:
1. Estoppel: The servient owner materially changes position in reasonable reliance on the easement holder’s assurances that the easement will no longer be enforced.
2. **Necessity: **Easement by necessity ends when the necessity ends.
3. **Destruction of servient land, so long as it is not willful destruction
4. ** Condemnation of servient estate
5. **Release in writing by easement holder to the servient owner.
6. Abandonment: **The easement holder demonstrates by physical action the intent to never use the easement again. Words alone or mere nonuse will not be sufficient to constitute abandonment.
7. **Merger: **The easement is extinguished when title to both the dominant and servient parcels become vested in same person.
h. **Prescription: **An easement can be terminated by employing the principals of prescription where there is an adverse, continuous interruption of the easement for the statutory period.
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) Touch and Concern; (4) Notice (Actual, Inquiry, Constructive); (4) 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 Reciprocal Servitude: General scheme by subdivider when sale began and notice.
Recording Acts
A recording act is the 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
* Pure Race: First to record wins (Ex: No conveyance … shall be good against subsequent purchasers for value and without notice thereof, unless the same be recorded according to law.”
* Pure Notice: A subsequent bona fide purchaser (BFP) prevails over a grantee that didn’t record.
- Race-Notice: A subsequent BFP (not devisees or gifts) that records first prevails over a grantee that didn’t record first so long as the BFP did not have notice.
- 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) Purchase Money Mortgage;
* (4) jr interests (first in time or recording);
* then mortgagor.
If money is left, mortgagor and people who “assumed” mortgage liable for deficiency
Zoning
The Tenth Amendment allows states to regulate the use and development of land through zoning for the protection of the health, safety, comfort, morals, and general welfare of its citizens.
Zoning must be reasonable, not arbitrary, and have a substantial relationship to the public benefit.
Types of Zoning:
* **Cumulative: **Creates a hierarchy of uses of land; land zoned for a particular use may be used for the stated purpose or for any higher use (e.g., a house could be built in an industrial zone, but a factory could not be built in a residential zone).
* **Noncumulative: **Land may only be used for the purpose for which it is zoned.
