Real Property Flashcards
Requirements for creating joint tenancy
i) with each tenant has equal right to possess or use the property (unity of possession),
(ii) each tenant having an equal interest in the property (unity of interest),
(iii) at the same time (unity of time),
(iv) and in the same instrument.
Requirements for creating joint tenancy
i) with each tenant has equal right to possess or use the property (unity of possession),
(ii) each tenant having an equal interest in the property (unity of interest),
(iii) at the same time (unity of time),
(iv) and in the same instrument.
Easement by prescription elements
continuous, actual, open, and hostile use for a specific period (20 years in Virginia).
Fee tail
Va has abolished fee tail…interest previously classified as fee tail is converted to a fee simple
Are future interests transferrable?
Yes, all future interests are fully alienable
SOl for cases of possibility of reverter or reentry
10 yrs
What happens when contingent remainder is still contingent when preceding estate is terminated?
It is not destroyed but remains an executory interest until contingency occurs
Does VA recognize Rule in Shelly’s case?
NO, abolished in va
RAP
Va has adopted RAP
Joint tenancy
Must explicitly state “with right of survivorship.”
Occurs where two or more persons own property with the right of survivorship. On the death of a joint tenant, that person’s interest terminates and the surviving joint tenants’ interests are accordingly increased. Where there is only one surviving joint tenant, that person owns the property outright upon the death of the other joint tenants.
Murder/voluntary manslaughter by joint tenant of another joint tenant results in killer being treated as
having predeceased victim
spouses may own real or personal property as tenants by the entirety for as long as
they are married
To create a tenancy by entirety, couple’s interest must be described as
“joint tenancy w right of survivorshup” and individuals described as “a married couple”
Does a right of survivorship exists in tenancy by entirety if not explicitly reserved?
Yes
On divorce, tenancy by entirety is converted to
tenancy in common
A deed conveying a tenancy by entirety w words of survivorship to parties who are not married creates a
joint tenancy w right of survivorship
Improvements made by co-tenant
co-tenant is entitled to compensation for improvements made to jointly held property when that property is partitioned
A ct may order partition of property if it considers the following
i) evidence of the collective duration of ownership or possession of any portion of the property by a party and one or more predecessors in title or in possession of the property who are or were related to the party
ii) a party’s sentimental attachment to any portion of the property
iii) lawful use being made of any portion of the property by a party and degree to which the party would be harmed if the party could not continue the same use of such portion of the property
iv) degree to which a party has contributed to the physical improvement, maintenance, or upkeep of any portion of the property; and
v) any other relevant factor
Virginia Fair Housing Law prohibits discrimination on basis of
elderliness, sexual orientation, gender identity, and military status, or source of funds, including military benefits
Landlord’s duty to notify re increase in rent
landlord who owns more than 4 dwelling units must provide written notice to any tenant who has the option to renew a rental agreement of any increase in rent during the subsequent rental agreement term.
Notice must be provided no less than 60 days before end of rental term agreement
Duty to Pay Rent—Tenant’s Defense
tenant may assert defense of codition existed on leased premises that was serious threat to life, health, or safety of occupants.
To prove safety defense tenant must prove
i) prior to commencement of action, landlord was served w a written notice of the condition by tendant but landlord has refused or failed to remedy the same within reasonable time;
ii) tenant, if in possession, has paid into ct amount of rent found by ct to be due and unpaid
Landlord may answer defense by establishing alleged conditions
i) do not exist
ii) have been remedies
iii) were caused by tenant
iv) tenant unreasonably refused entry by landlord for purposes of correcting conditions
Landlord cannot charge fee for late payment of rent unless the charge
i) is provided for in a written rental agreement and
ii) does not exceed 10% of periodic rent or 10% of balance due, whichever is less
if tenant unjustifiably abandoned leasehold, then tenant is treated as having
made an offer to surrender his rights under the lease
Landlord’s duty to Mitigate
w respect to residential lease, landlord has duty to mitigate damages
Does not have such duty in commercial leases when tenant abandons leased premises during the term of lease
Landlord’s duty to give possession
w respect to residental lease, landlord must give tenant actual possession
w respect to commercial, landlord is only required to give legal possession (title?)
If landlord willfully fails to deliver possession of dwelling unit to tenant, rent abates until possession is delivered and tenant may
i) terminate lease upon at least 5 days’ written notice to landlord; or
ii) demand performance of rental agreement by landlord
Landlord must make reasonable repairs of premises if
i) condition in dwelling unit that constitutes noncompliance w the rental agreement or law, or condition constitutes a fire hazard or serious threat to life, health, or safety, and
ii) tenant provides notice of condition in writing, landlord must make repairs w in 14 days of receiving notice
Warranty of Habituality
landlord must
i) comply w requirements of applicable building and housing codes materially affecting health and safety
ii) make all repairs and do whatever is necessary to put and keep premises in a fit and habitable condition
iii) keep all common areas shared by two or more multifamily dwelling units clean and structurally safe;
iv) maintain in good faith and safe working order and condition all electrical, plumbing, sanitary, heating, ventialting, air conditioning and other facilities and appliances, including elevators, supplied or required to be supplied by him
v) maintain premises in such condition as to prevent mold
vi) supply running water and reasonale amounts of hot water at all times and reasonable air conditioning if provded and heat in season except when dwelling unit is so constructed that heat, air conditioning or hot water is generated by an installation within the exclusive control of tennat or supplied by a direct public utility connection;
vii) maintain carbon monoxide alarms
If a landlord willfully or negligently fails to supply heat, running water, hot water, electricity, gas, or other essential services, then the tenant must
serve written notice on landlord identifying the breach and give landlord a reasonable time to cure
essential services: if landlord fails to correct deficiency within a reasonable time, tenant may
i) recover damages based on diminution in fair rental value of dwelling unit; or
ii) move into substitute housing , in which case tenant is excused from paying rent for period of landlord’s noncompliance
If, at the beginning of the tenancy, a condition exists in a dwelling unit that constitutes a fire hazard or serious threat to life, health, or safety (including an infestation of rodents or a lack of heat, hot or cold running water, electricity, or adequate sewage disposal facilities), the tenant is entitled to
terminate rental agreement and receive full refund of all deposits and rent paid to landlord, so long as tenant provides landlord w written notice of intent to terminate the rental agreement within 7 days of date on which tenant was to have taken possession of unit
Unless landlord asserts lessee’s termination was unjustified, landlord must refund all deposits and rent paid by tenant to tenant within
i) 15 biz days following day on which termination notice is delivered to the landlord or
ii) tenant vacates dwelling unit, whichever is first
Landlord may demand up to ___ months security deposit
2 months
How long does landlord have to provide itemized list of any deductions or charges taken from the security deposit, and balances owed to tenant
45 days
Dual agent serves as
buyer and seller of real property…Va permits this
Equal dignities rule requires
K to pay a commission to real estate agent/broker to be IN WRITING bc underlying K to sell real property must be in writing
Defense of Part Performance to agreement not complying w SOF, D must show
i) agreement was certain and definite in its terms
ii) acts proved in part performance “refer to, result from, or were made in pursuance of agreement” and
iii) refusal to execute K would constitue fraud upon the party
Oral modification of K subject to SOF
VA does not permit oral modification of K subject to SOF
There is an implied warranty of fintness in sale of any dwelling except
condos
Implied warranty of fitness of dwellings provides that
dwelling is free of structural defects and fit for habitality
How long does Warranty of dwelling’s fitness extends for? What is SOL for bringing such claim?
1 yr and there is a 2 yr sol for filing suit once defect is discovered
If there is a breach of dwelling’s fitness, buyer must
give notice to seller, who then has a reasonable time (6 months) to cure defect.
How long does Implied warranty for structural defects for condos extend for?
2 years
seller of a residence has a duty to disclose
all known material physical defects to the buyer. Defect must not be readily observable or known to buyer. To be material defect must substantially affect value of residence, impact health or safety of a resident or affect desirability of residence to the buyer.
Virginia effectively requires the seller of residential real property to inform the buyer of
caveat emptor rule
Caveat emptor notice must include statement that
“The owner makes no representations or warranties as to the condition of the real property or any improvements thereon . . . and purchasers are advised to exercise whatever due diligence a particular purchaser deems necessary, including obtaining a home inspection.”
Merger
obligation contained in the contract of sale re title are not merged into the deed and cannot thereafter be enforced unless the deed contains the obligation
the doctrine of merger only applies to
obligations in a K that relate to title or are addressed in the deed…even when k itself specifically states that obligation will not merge into the deed.
Is a closing statement reflecting the parties’ contractual agreement and placing dollar values on agreed to terms considered a deed?
Doc of merger does not apply to a closing statement, and does not supersede the K
Collateral Agreement
K made in connection w sale of property, does not affect title, is not addressed by deed and does not conflict w deed.
Result if agreement meets requisites of collateral agreement
it is not merged into the deed and survives the execution of the deed.
Risk of Loss
risk of loss falls n buyer after execution of the K for sale…
Risk of Loss exception
conditions not anticipated by either party (change in property zoning) can lead a CT to refuse to enforce the K
Residential Executory real estate K is
an installment land K, lease option K or rent-to-own k by which a purchaser i) acquires any right or interest in real property other than a right of first refusal, and ii) occupies or intends to occupy the property as his primary residence
Purchaser under residential executory real estate K must be given right to
exercise the option to purchase the property at any time before the option expires, and no fee or penalty may be charged to the purchaser who exercises the option at an earlier time than anticipated under the K
Adverse posession period of posession
possession must be continuous and uninterrupted for 15 years
Disibility will not extend statutory period of adverse possession beyond
25 yrs after adverse p began….if co-tenant is under disability, the applicable SOL will still run against other co-tenants who are not under disability
Can child adversely possess parent’s property?
no…presumption that child is on land w permission and therefore not hostile UNLESS there is clear, definite, or unequivocal notice of the child’s intention to assert exclusive ownership
co-tenant cannot obtain an interest of another co-tenant by adverse possession unless
co-tenant gives actual or constructive notice of intent to oust
Adverse Poss: when co-tenant transfers his interest to a new co-tenant by conveyence that, on its face, purports to give the new co-tenant sole possessioj of the property, then the new co-tenant may adversely possess the interests of the other co-tenants by
possession of the property for the 15 yr stat period
Can surface owner adversely possess mineral rights by possessing the surface after a severance of the surface and mineral rights?
No
When property is held by a life tenant with the remainder interest held by remaindermen, an adverse possessor who occupies the property for the statutory period acquires title against
the life tenant but not as against the remaindermen… stat period for adverse possession against remaindermen begins to run when life tenant dies
Requirements for recording a deed
Grantor must acknowledge it, or it must be proved by two witnesses for it to be recorded.
Va’s recording statute reads as a
Notice statute, but SC has found no error in conclusion that it is a race-notice
Is possession of property by person other than grantor sufficient to put subsequent purchaser on notice?
Although VA recognizes inquiry notice, mere possession does not satisfy this. Need more evidence that possessor has title to property such as a reference in chain of title
Estoppel by deed
grantor who conveys an interest in land by warranty deed before actually owning it is estopped from later denying effectiveness of deed
Is the effectiveness of estoppel by deed limited to grantor and grantee?
Yes
Effect of Words “w general warranty”
creates covenant created by grantor that she, her heirs, and her personal representatives will forever warrant and defend such property unto the grantee, his heirs, and his personal representatives & assigns against the claims and demands of all persons whomsoever.
English covenants of title
i) That the grantor is seized in fee simple of the property conveyed (covenant of seisin);
ii) Of the right to convey;
iii) To be “free from all encumbrances”;
iv) Of “no act to encumber” by the grantor;
v) Of further assurances; and
vi) Of quiet possession (i.e., covenant of quiet enjoyment).
Special Warranty deed purports that
seller only warrants he has not created any defects in title
Uniform real property transfer on death act
individual may transfer real property to one or more beneficiaries effective on individual’s death. Deed transferring ownership upon individual’s death must be recorded during transferor’s lifetime and not revoked
Exoneration of liens in VA
Unless contrary intent is clearly set out in will, a specific bequest or devise passes w/o the right of exoneration and thus remains subject to any mortgage, security interest, or other lien existing at date of testor’s death.
Deed of trust: Trustee may first apply any proceeds from sale of property after a buyer defaults to
expenses incurred executing the trust, including a reasonable commission to the trustee
When must Mechanic’s lien be filed
Within 90 days of last day of the month in which labor was performed
Judgment lien becomes a lien on judgment debtor’s real property when
it is recorded on judgment lien docket of the clerk’s office of the county or cty where land is situated….
Judgment creditor may execute judgment by
levying on such real property
Persona liability of mortgagor: can P file action against mortgagor w/o requiring mortgagee to first proceed against property?
Yes
Deed of trust or mortgage is regarded as a
security interest for underlying debt
When is mortgage transferred w debt?
whenever the debt is transferred the deed of trust or mortgage is transferred w debt
Who may enforce a deed of trust?
a beneficiary of the underlying debt, and no person w/o an interest in the debt has authority to foreclose
Ejectment action
used for determing who has title to land
Unlawful detainer/ unlawful entry
used in dispute re possession (usually btwn landlord and tenant)
easement in gross
legal right of indidual to use somone else’s land for specific purpose and w/o owning it
Easement appurtenant
right attached to piece of land (dominant estate) to use neighboring land (servient estate_ for specific purpose. Real property interest tied to land, not individual owner.
An easement expressly granted for the benefit of utility services shall be deemed for all purposes to
touch and concern servient tract, run w the servient track, its successors, and assigns for benefit of entity providing utility services, its successors and assigns.
negative easement
restriction is put on property
negative easement by estoppel arises when
servient estate owner makes representations that dominant estate owner relies on to their detriment..
Easement by Necessity
1) dominant and servient estates were derived from common title
2) easement is reasonably necessary to the enjoyment of the dominant estate
3) dominant estate became landlocked by at time of severance of two estates and there is no means of ingress and egress other than over servient estate
Easement by implication
where grantor conveys land by deed describing it as bounded by a road or street, he implies that such way exists, and that grantee acquires benefit of it
easement by prescription SOL
20 yrs
Easement by Estoppel
Good-faith, reasonable, detrimental reliance on permission by a servient estate holder to make a limited use of her property can create an easement by estoppel if necessary to prevent an injustice.
What happens when original purpose for which easement was created no longer exists?
Easement is terminated
An irrevocable equitable easement can arise when
an attempt is made to create a license and then licensee changes his position
Does a covenant not to compete run with the land?
No, however, it can be enforced in equity as a personal covenant against the grantee and any others who take title w/ knowledge of its existence
Common elements of condominium include
all parts of the condo other than the living units
Who has standing to sue for claims or actions related to common elements of condo
Only condominium owners’ association, owners of the condo units do not have such standing
A single family zone (zoning) unit includes
foster home, family care home, or group home where up to eight mentally or physically impaired people reside along w staff
Landowner may fend off surface water as a
common enemy; however, he may not needlessly or negligently injure property of another
To impose liability for undermining lateral or subjoining support on adjoining land, p must show
damage to his property
Covenant of quiet possession is a promise that
grantee will hold and enjoy the land free from any interruption, claim or demand by anybody, and that grantor would indemnify and save grantees harmless against any and every charge or encumbrance
Is a lwfully adopted zoning ordinance an encumberance?
No
Is an unenforced judicial lien an encumberance that would violate the Covenant against encumberances?
No, so long as judgment is unenforced, no actual damages are incurred by buyer unless he discharges the lien or suffers damages as a result of the judgment creditor’s enforcement of the lien.
Doctrine of mutual mistake: ct may give relief where
there has been an innocent omission or insrtion of a material stipulation, contrary to the inten of both parties
Doctrine of merger only applies to
subject matter specifically covered by deed…not to provisions collateral to passage of title.
Doctrine of merger: closing statement
closing statement does not extinguish a purchase K….thus, the purchase k and its provisions concerning allocation of real property taxes survive
Deed may validly convey real property by inter vivos gift so long as there is
i) donative intent
ii) delivery and acceptance
Deeds must be
1) in writing
2) signed by grantor and reasonably identify
3) the parties and land
SOF suretyship
no action concerning an agreement shall be brought against any person upon a promise to answer for the debt, default, or misdoings of another, unless that agreement is in writing and signed by party to be charged or his agent.
Is a grantee who assumes an existing mortgage a surety?
No
Does parole evidence rule apply to deeds?
Yes
Parole evidence is inadmissible to
vary or contradict a complete and unambiguous written instrument
Is partition in kind possible for residential real property?
No…law does not contemplate dividing home in half bc it would be impracticable
General warranty deed covenants against
title defects that either grantor or his predecessors created
Covenant of quiet possession
grantee can peaceably and quietly hold and possess property w/o demand or claim to property from a 3rd party.
Covenant of Further Assurances
covenant to execute deeds or otherwise take action to perfect title if necessary
Covenant against encumbrances assures that
there are no encumbrances against title or interest in the property
General warranty deed warrants against defects in ____ not ___
defects in title, not conditions on property
