Real Property Flashcards
Adverse possession
Allows one who has wrongfully entered a property to obtain possession of that property when there has been (1) actual possession, (2) which is open and notorious, (3) and the possession is hostile continuously for the statutory period.
Seasonal use of a property may still satisfy the continuous possession element if this is the way a typical owner of a similar property would use the land.
One adverse possessor may tack his time with the time of another adverse possessor if the two adverse possessors are in privity.
Land sale contract
Contract for a conveyance of an interest in real estate that governs the agreement until closing a which time the deed takes over under the merger doctrine.
SOF applies:
1. writing
2. parties
3. signed
4. describe land
5. consideration
Part performance exceptions (2 of 3)
1. Possession
2. Substantial imrpovements
3. Payment of purchase price
Equitable conversion
Once the contact is signed the buyer is deemed the owner and is responsible for the loss of the property.
Specific performance in a breach of land sale contract
- Valid K
- Conditions imposed on plaintiff satisfied
- Inadequate legal remedy
- Mutuality of performance
- Feasibility of enforcement
- No defenses (laches, unclean hands)
Mortgage
Financing arrangement that conveys a security interest in land where the parties intend the land to be collateral for the repayment of a monetary obligation. SOF applies unless an equitable mortgage. Mortgagee may forclose on the land to satisfy the debt when the mortgagor is in default.
Deed
A document that serves to pass legal title from the grantor to the grantee. A deed must be properly delivered and accepted to have effect. Delivery requirements include a present intent to transfer and acceptance of the deed. Once the property closes the deed becomes the operative document governing the transaction.
General warranty deed
Present covenants (breached at sale)
1. Seisin - grantor owns the property interest
2. Right to convey
3. Against encumbrances - no mortgages, liens, easements, or use restrictions.
Future covenants (run with the land)
1. Warranty of title - grantor promises to defend lawful claims of title
2. Quiet enjoyment - promise that grantee will not be disturbed in possession by lawful claims of title
3. Further assurances - grantor will do whatever future acts are reasonably necessary to perfect title.
Devising property by will
- Ademption - Property is no longer part of the estate at time of death gift fails.
- Exoneration - Encumberances on the property will be paid off by the estate.
- Lapse and antilapse - If beneficiary predeceases testator bequest fails in lapse jurisdiction or is passed to heirs under antilapse.
Recording statute types
Pure race statute - First to record wins.
Pure notice statute - BFP prevails over grantee that didn’t record.
Race-notice statute - A BFP that records first prevails over a grantee that didn’t record.
Recording notice
- Actual notice
- Inquiry notice- purchaser is in possession of facts or could make an inspection of the property which would lead a reasonable person to make further inquiry.
- Record notice- Prior interest was properly recorded.
Estoppel by deed
One who conveys interest he does not own but subsequently obtains an interest in automatically transfers to the grantee.
Shelter doctrine
One who takes from a BFP stands in the shoes of the BFP.
Fee simple absolute
Absolute ownership indefinitely
Fee simple determinable
Automatically terminates at the occurance of a specified event. Grantor has a possibility of reverter.
so long as, during, while, until, unless
Fee simple subject to condition subsequent
Has the potential to terminate at the occurrence of an event. Grantor has a right of reentry.
but if, provided that, upon the condition that
Life estate
Measured by the lifetime of a person. Conveyable for that lifetime. Duty of life tenant not to commit waste.
Restraints on alienation
Absolute restraints are void but reasonable restraints will be upheld.
Rule Against Perpituities
No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.
Joint tenancy
Two or more people hold a single, unified interest in a property with a right of survivorship. A conveyance made by one joint tenant will sever the joint tenancy into a tenancy in common. A joint tenancy cannot be devised by will.
Requires:
a. interest created at the same time
b. shared title
c. equal interests
d. equal right of possession
e. express right of survivorship
Lien theory mortgage does not sever, title theory severs, both sever if forclosed.
Tenancy in common
Two or more people own a property without a right of survivorship. Each cotenant has the right to possess the whole property. A cotenant has no duty to pay for his occupancy or to share profits from his use of the land. Cotenants are solely responsible for theur own losses from use of the property. Cotenants are responsible for their proportionate share of carrying costs such as taxes and mortgage interest payments. May seek contribution if paid more than their share. Can also seek contribution for necessary repairs.
Tenancy by the entirety
Neither tenant can unilaterally convey their share or encumber the property or break the right of survivorship.
Ouster
Cotenant refuses occupancy to other tenant. Must account for fair rental value of the premises to ousted tenant. Ousted cotenant may bring action to regain possession.
Tenancy for years
For a fixed period of time. SOF if more than one year. No notice to terminate.
Periodic tenancy
Automatically continues from one period to the next. Written notice is required to terminate in accordance with the time period unless for 1 year than six months notice is sufficient.
Holdover tenants is considered to have a periodic tenancy of the time period of the expired lease. Known as a tenancy at sufferance.
Tenancy at will
Tenancy for no fixed period of time that may be terminated at any time.
Tenant duties
- Pay rent
- Avoid waste
Landlord duties
- Implied covenant of quiet enjoyment - LL will not interfere with tenants use and enjoyment of the premises. ie. constructive eviction (1. premises are virtualy uninhabitable due to actions of LL 2. notice to LL 3. Tenant moves out in reasonable time)
- Implied warranty of habitability - premises must be fit for human habitation may (1) terminate lease (2) make repairs and deduct from rent or (3) pay reduced rent and sue
Fixtures
Items that were once moveable chattel but have become so attached to the property that removing the item would cause damage to the estate or destroy the item. Trade fixtures (commercial tenant) strong presumption they are removable.
Assignments and subleases
Assignment is a transfer of the entire remaining interest. New and old tenant are both liable to the LL unless there is a novation.
Sublease is a transfer of anything less than the entire interest. New tenant liable to old tenant, old tenant liable to LL.
Easements
Appurtenant easements benefit a particular parcel of land and are comprise of a dominant estate and a servient estate.
An easement in gross benefits an individual.
Express easment
SOF applies.
Express, prior use, necessity, prescription, estoppel
Easement created by implication from prior use
- Land was originally one parcel
- Land is severed into more than one parcel
- Use existed prior to severance
- Easement is reasonably necessary to the dominant land’s use and enjoyment of the property
Express, prior use, necessity, prescription, estoppel
Easement by necessity
- Common ownership of the parcels existed at some point
- Easement is stricly necessary
Express, prior use, necessity, prescription, estoppel
Easement by prescription
- Actual use
- Open, notorious, visible
- Hostile
- Statutory period
Express, prior use, necessity, prescription, estoppel
Easement by estoppel
Servient parcel allows use of the property such that the user reasonably substantially changes his position in reliance on permission not being revoked.
Express, prior use, necessity, prescription, estoppel
Scope of easements
May not unreasonably increase use and dominant owner has the duty to repair and maintain the easement.
Transfer of easements
Servient estate transfer- Easement runs with the land except if the purchaser is a BFP without notice.
Dominant estate transfer- Appurtenant easements run automatically. Easements in gross are not transferable (modernly commercial easements in gross may be transfered)
Termination of easements
- Estoppel
- Necessity ends
- Destruction
- Condemnation
- Release in writing
- Abandoment
- Merger
- Prescription
Easement essay roadmap
- Type of easement - affirmative/negative, appurtenant/in gross, dominant/servient
- Indentify how easement was created
- Discuss scope, maintenance, transfer, termination
Real covenants
For a burden to run with the land:
1. writing ie deed
2. intent to run
3. touch and concern
4. horizontal and vertical privity
For a benifit to run:
1. writing
2. intent
3. touch and concern
4. vertical privity
5. Modernly no 3/4 necessary
Equitable servitude
Run if:
1. writing
2. intent
3. touch and concern
4. notice (actual, inquiry, record)
Implied reciproval servitude
- Common plan or scheme
- Notice (actual, inquiry, record)
- No writing required
Lateral support
The right to lateral support is absolute. If land subsides while in its natural state, strictly liable. If improved strictly liable if land would have collapsed in its natural state, if no then negligence.
Zoning
Zoning regulations must be reasonable, not arbitrary, and have substantial relation to public benefits. An owner may seek a variance if they can show unnecessary hardship. A prior nonconforming use may be permitted to continue.
