Real Property Flashcards
Joint tenancy
TTIP
Time
Title
Instrument
Posession
Leaseholds
Tenancy for years- set period of time, auto ends on date
Periodic Tenancy - month to month, notice to end based on period, (express or implied creation- leased with no mention of duration but payment schedule will set the interval - oral term of years results in periodic tenancy)
Tenancy at will - can be terminated by either at any time
Hold over tenancy - overstayed lease - eviction proceedings
Tenant Duties
To repair (maintain premises) - doctrine of waste
Pay rent
* Breach then Evict or if tenant still in property then SIR
* Surrender - LL choose to treat abandonment at implicit surrendor and can end lease
* Ignore - only in minority
* Relet - and hold wrongdoer ilable for difference.
Waste
Voluntary Waste - tenant’s conduct causes damage
Permissive Waste- tenant fails to take reasonable steps to protect premises from damage from elements
Ameliorative Waste - tenant unilaterally alters leased property increasing its value - liable for cost of restoration but modern, if long terms and in line with neighborhood.
LL Duties
Duty to deliver possession - actual physical possession of premises
Implied covenant of quiet enjoyment - tenant right to quiet use and enjoyment of premises -
- breaches actual or partial eviction (either one relieves tenant of right to pay rent)
- Constructive eviction - LL breach of duty is substantial interference due to L’s actions/failures, T must provide notice, T must vacate. T can terminate lease and seek damages
Acts of Other Tenants- abate nuisance on site and control common areas
Implied Warranty of Habitability: residential only, bare living requirements must be met, T’s entitlements: Move out, repair and deduct, reduce/withhold all rent, seek money damages.
Anti Discrimination Legislation
Civil rights Act - bars racial or ethnic discrimination in sale or renal of all property
Fair Housing Act - protects tenants/potentials from discrimination based on race, color religion, national origin, sex or disability as well as familial status
* landlords mus premit disabled tenants to make reasonable modifications to existing premises to accomodate their disabilities at tenants own expense
Exemptions - owner occupied buildings with 4 or fewer units in which persons live independently of each other and single family homes sold or rented by owner who owns no more thatn three single family homes.
Transfer of Leasehold
assignment - transfer of the entire remaining term of lease (LL and assignee in privity of estate and liable on aall covenants that run with the land, but Original Tenant is still in privity of contract)
sublease - tenant retains some part of the remaining lease (not in privity of estate)- only implied warranty of habitabiltiy available.
LL can require prior written approval, but waiver once is waiver alwasy unless LL espressly reserves
LL tort Liability
CLAPS
Common areas -duty of reasonable care in maintaining all common areas
latent defects - duty to warn of hidden defects if they have knowledge/reason to know
assumption of repairs - must complete them with reasonable care - not negligently.
public use rule tenant will not repair and LL liable for any defects that can cause injury to members of the public
shortterm lease of furnished dwelling stricter duty liable for any defective condition whihc proximately injures tenant
Modern Trend: duty of reasonable care
not liable for defects arising after T takes possession unless known/should have known
Legal duty to repair: LL had statutorty duty to repair then liable in tort
Security
Servitudes
**Affirmative Easements **- PING (Prescription, Implication, Necessity, Grant) Esement appurtenant is transferred automatically with dominant tenant, Easement in gross for commercial purposes only is assignable.
Negative Easements - LASS - Light Air Support Streamwater Writing signed by Grantor
Real Covenants - Writing signed by Grantor burden of promise will run to successor if WITHN - writing intent touch and concern, verticle and horizontal privilty and notice, Benefit of promise will run to succesor if Writing Intent Touch and concern and verticle privity
Equitable Servitudes - Writing signed by Grantor unless implied by General Scheme Doctrine - Succeessors bound if WITN - Writing Intent Touch and Concern, Notice
**Reciprocal Negative Servitudes (Common Scheme Doctrine) **- Majority - in subdivision residential restrictions in prior deeds bind subsequent grantees if at start of subdivision - common scheeme and unrestricted lot holders had notice, Minority not binding unless expressly restricted in writing. - subs
Easement
Grant of nonposessory property interest that entitles its holder to some form of use or enjoyment of another’s land. presumed to be perpetual unless grant specifically limits the interest.
Affirmative:
Negative: Light, Air, Support, streamwater from artificial Flow (some scenic view but minority) Only created expressly by a writing signed by grantor
Easement Appurtenant and In Gross
Appurtenant - servient tenemant (bears burden), right of special use benefits dominant tenemant in his physical use or enjoyment of another tract of land.
* Transfer - automatically with dominent tenament regardless if mentioned in conveyance and with servient but not if servient purchased for valuable consideration by BFP with no notice of easement.
In Gross - only some personal or pecuniary advantage not related to use or enjoyment of own land.
* Transfer - only if commercial purposes
Creation of Affirmative Easement
PING!
Prescription COAH - continuous, open and notorious, actual use that need not be exclusive, Hostile -
Implication - operation of law exception to Statute of Frauds - *preexisting use *(previous prior to division use that was aparent and continuous and expectation of parties atht use would survive partition bc reasonably necessary to donminant tenement’s use and enjoyment) OR Subdivision plat , profit a Prendre- uses it to reqonably extract from servient property its minerals or product.
Necessity- conveyance of portion of land with no other way out than some part of remaining land
**Grant **- in writing and signed by holder of servient tenemant unless duration is brief enough to be outside Sof F. Comply with formal requisites of a deed.
Express reservation by grantor of land for own use
Termination of Affirmative Easement
END CRAMP!
**Estoppel - ** oral expression of an intent to abandon and servient owner materially changes position in resonable reliance on easement holder’s assurances or reps.
Necessity ends
Destruction of servient land other than through the willful conduct of servient owner
Condemnation by governmental eminent domain power
Release release given by easment holder to servient land owner
Abandonment must show physical action
Mergerunity of ownership
Prescription servient owner interferese with it in accordance with elements of adverse possession - CHOA - Continuous, hostile, open and notorious and actual use
Licenses
license is a privilege revocable at will. Writing not needed to create a license
Nonrevocable if estoppel applies then easement by estoppel until holder receives sufficient benefit to reimburse him for his expenditures.
Profit
all rules governing easement are appicable to profit but can be extinguisehed through surcharge - misuse that overly burdens the servient estate.
Restrictive Covenants
written promise to do or not do something related to land.
contractual limitation or promise regarding land.
can be negative or affirmative.
$ damages.
Running with the land: one tract burdened and other benefited always analyze burden first.
If burden runs -WITHN: writing (original promise), intent (to run with the land), touch and concern (restrict burdened parcel owner in use of that parcel of land or must do something that increases obligation in connection with the land incl. covenents not to compete and HOA fees), horizontal (succession of estate - grantor-grantee, landlord-tenant or mortgagor- mortgagee relationship when convenant created shared some interest) and verticle privity (non hostile nexus), notice (actual, inquiry, recrd notice).
Benefit runs - WITV- Writing (orignal promise) Intent (to run with the land) Touch and Concer, Verticle privity.
Termination : written release, merger of estates, or condemnation of the burdened property.
Equitable Servitudes
A promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unleess successor is a BFP (for value without notice of covenant)
Created by promises contained in a writing that satisfies the Statute of Frauds: WITNES
Writing - generally but not always original promise was in writing (common scheme doctine is exception)
Intent - Oritinal parties intended promise would be enforceable by and against successors
Touch and Concern - affects parties as landowners
Notice - subsequent purchasers of land burdend by covenant had actual, inquiry or record notice of the covenant when they acquired the land.
Race, Notice, Race-Notice
Race Jurisdiction - whoever records first wins, actual notice is irrelevant
Notice Jurisdiction - a subsequent BFP prevails over prior grantee who failed to record.
Race- Notice - a subsequent BFP is protected only if she records before the prior grantee
Shelter Rule
Person who takes from BFP will prevail against any interst that the transferor BFP would have prevailed against (even when transferee had actual knowledge of the prior unrecorded interest)
Land Sale Contracts
Must be in writing signed by the party against whom enfjcement is sought, identify the parties, describe the porperty and include the condiseration or a means of determining the price.
Implied govenant in every land sale contract that at closing the seller will provide buyer with a title that is marketable which typically means an unencombered fee simple with good record title.
Implied promise that seller will not make any false statements of material fact. Failure to disclose: seller must know or have reason to know, buyer unlikely to discovery and defect serious enough that the buyer would probably reconsider the purchase. ( no general disclaiemr but okay to disclaim specific types of defects)
Generally, mortgages, liens, easement and covenants render title unmarketable unless buyer waives them unless they are a benficial easement or one that was visible or known to buyer does not consitute an encumbrance.
Land Sale Contracts: Merger
If buyer permits closing to occur the contract is said to merge with the deed, and in the absence of fraud, the seller is no longer liable on the implied covenant of marketable title.
Deeds
Lawful execution of a deed requires - writing signed by grantor, unambiguous description of the land, identification of the parties by name or description words of intent to transfer “grant”
Delivery of Deed - turns on grantor’s intent that title pass immediately, acceptance presumed but rejection defeats delivery
General Warranty Deed-
Breached at time deed delivered
* Covenant of sesin (grantor owns)
* covenant of right to convey
* conventant against encombrances
breached may occur when grantee is disturbed in possession
* covenant for quiet enjoyment - grantee will not be disturbed in possession by 3rd pty’s lawful claim of title
* covenant of warranty - defend reasonable claims of title by 3rd pty and to compensate for loss
* covenant for futher assurances - do what is necessary to protect title
Special Warranty Deed - grantor has not conveyed same estate or part thereof to anyone other than grantee
estate is free from encumbrances made by grantor
Quitclaim Deed - conveys only what grantor has at time of conveyance
Defenses to Equitable servitudes
Neighborhood conditions have changedd so significantly inequitable to enforce
unclean hands
acquiested in violation of the servitude by a burdened party
estoppel
Laches
Adverse Possession
Continuous for the statutory period of time
Open and notorious- apparent to put owner on notice
Actual and exclusive possession
Hostile- without consent
Co-tenants - ouster required.
Grantor that stays in possession- permission presumed
Claim of Right - still hostile and adverse.
Tacking - one adverse possessor may tack time on so long as there is privity (non hostile nexus - contract, deed, or will)
Foreclosure
- Attornee’s fees and expenses and any accured interest on the foreclosing bank’s mortgage
- then each claimant entitled to satisfaction in full be fore a junior lienholder may take
- remainder is deficiency judgment
First in time first in right.
Necesary parrties - junior lien holders and debtor , failure to include a necessary party results in the preservation of that party’s claim despite forclosure and sale.
but until creditor records there is no priority
equitable redemption exists up to foreclosure sale and then extinguished.
Zoning
Variance - grants landowner permission to depart from lieteral restrictions of zoning ordinance. Must show undue harship and no diminution to neighboring values
Non conforming use - once lawful now deemed nonconforming - cannot be shut down without just compensation - basically a taking.
Changes to non conforming use - cannot be extended or intensified in ways that constitute a substantial change.
Cumulative zoning - heiracrchy or uses of land : single family, apartment, etc.. where highest use can always be done.
Condos and HOAs
Charters and bylaws that place requirements/restrictionson owners use of property : declaration of covenants, conditions, and restrictions
Lateral and Subjacent suport of land
Right to have land supported in its natural state by adjoining land.
* strict liablity if excavation causes adjacent land to substide when it is in natural state
* Land with buildings on it: negligence required or show it would have happened if it didn’t have buildings on it for strict liability.
Mining companies must support buildings and surface existing on the date subajeacent estate was created, later buildings requires showing of negligence.
Water Rights: Watercourses (streams rivers lakes)
Riparian Doctrine: water belongs to those who own the land bordering the watercourse (attaches to contiguous tracts held by same owner) :
Natural flow theory- riparian owner’s use enjoinable if it results in substantial or material diminution of waters’ quantity, quality or velocity
Reasonable Use Theory: all ripariasn share right of reasonable use of the awater - does not interfere with the use of other riparian owners. Balance utility of the owner’s use agaisnt gravity of harm: alteration of flow, purpose of use, pollution, extent of use, destinatio of water taken, miscellanious conduct that might give rise to litigation.
Natrual v. Artificial Use - under either theory natural uses prevail over artificial uses (irregation)
Prior appropriation doctrine - water belongs to the state, but the right to divert it an duse it can be acquired by an individual through their actual use. Determined by priority of veneficial use. First in time, first in right, for any productive or benficial use is sufficient. but can be lost by abandonment
Water Rights: Groundwater
Absolute Ownership Docrtrine: owner of overlying land an can take it all even for export
Reasonable Use Doctrine : absolute ownership but exporting allowed only if it doesn’t harm other owners who have rights in the same aquifer
Correlative Rights Doctrine - own as joint tenants and each allowed reasonable amount for own use
Appropriative Rights Doctrine - priority of use now ownership of overlying land is determinative. (western states)
Retatement approach - surface owner may pump groundwater unless it (1) unreasonably harms neighboring landowners, exeeds pumpers reasonable share, directly and substantially affects surface waters and unreasonably harms surface water users
Water Rights : Surface water
Natural Flow - owners cannot alter natural drainage patters
Common enemy theory: many states owner can take any protective measures to get rid of the water or combat its flow (modified to prohibit unnessessary damge to others lands)
Reasonable use - balancing utility of the use against gravity of the harm
Present Possessory Estates
**Fee simple absolute **(absolute ownership of indefinate or potentially infinite duration feely transferable devisable by will and descendible through intestacy)
Defeasible feeFee simple that can be terminated upon happening or stated event:
1. *Fee Simple Determinable and Possibility of Reverter *(for so long as, until, while, during) (transferrable, devisable and descendible but always subject to the condition) Reverter is automatic. Reverter goes back to Grantor.
2. Fee Simple Subject to Condition Subsequent - reserves the right to terminate the estate upon happening of a stated event (NOT AUTOMATIC) (upon condition that , provided that, but if, if it happens that) (reservation of right is not transferable)
3. Fee Simple Subject to Executory Interest: either of the above but then passes to a third party. Automatically forfeitted.
Life Estate measured by the life or lives of one or more persons.
Life Tenants
Entitled to all ordinary uses and profits from the land
must not commit waste (voluntary, permissive or ameliorative) - can exploit where necessary for repair or maintenance of land, land suitable only for that use, expressly or impliedly allowed by grantor. Open mines doctrine- cannot expand.
Duties:
* must preserve the land and structures in a reasonable state of repair
* pay ordinary taxes (limited to extent of total income or profits generated from the land or fair renatl value) Pay interest only on mortgages and, special assessments for public improvements of short duration.
* Amerliorative waste - cannot engage unless all future interest holders are known and consent. : but today life tenant may - alter/demolish buildings if : market value of the future intersts is not diminished and either the remaindermen do not object or a substantial and permanent change in neighbordhood consitiond deprived property in its current form of reasonable productivity or usefulness.
Future Interests
By Grantor:
* possibility of reverter
* a right of entry
* reversion
By someone else:
* contingent remainder: unborn or unascertained persons (to A for life then to B’s first child) or subject to condition precident (conditions appears before language creatign remainder (if B graduates from college)
-
vested remainder existing and ascertained person and not subject to condition precedent
1. indefeasibly vested remainder - certain to aquire with no string (To A for life remainder to B)
2. vested remainder subject to complete defeasance - has condition subsequent (To A for life, then to B and his heirs, but if B dies unmarried then to C)
3. vested remainder subject to open - created in class of persons but can be subject to diminution - birth of additional kiddos (to A for life then to B’s Children). Class clsoes with Rule ofconvenience - when some member of the class can call for distribution (womb rule applies) -
executory interest - future interest in third parties that either divest a preceeding freehold state or follow a gap in possesion or cut short gransor’s estate
1. shifting executory interst - follows a defeasible fee and cuts short someone other than the grantor - To A but if B returns from Canada to B and his heirs
2. springing executory interest - cuts short interest of Grantor - To A if and when she becomes a lawyer, A is in high school, or follows a gap.
Rule against perpetuities
Future interests are void if there is any possibility that the interest might vest more than 21 years after a person alive at the time of the grant has died.
Applies only to contingent remainders, executory interests, vested remainders subject to open, options to purchase and rights of first revusal. NEVER grantor’s interests.
Begins to run : will - testator’s death , deeds - ddate of delivery, irrevocable trust - date of creation, revocable trust - when it becomes irrevocable.
Must Vest - 1. posessory, or 2. indefeasibly vested remainder or a vested remainder subject to total divestment
