Real Property Flashcards
Breach of Implied Warranty of Habitability
T may: (1) terminate the lease
(2) make repairs and offset costs against rent
(3) abate rent; or
(4) seek damages
Types of Waste
(1) Voluntary - overt act
(2) Permissive - negligent maintanence
(3) Amerliorative - increases value, but unnecessary; need FI approval first
Equitable Servitude (WITN)ES
Enforce by way of equity (injunction) and runs w/ the land if: (1) in writing; (2) touch and concern land (3) intent; (4) notice
Reciprocal Negative Servitude
Binding on subsequent purchasers if (1) common scheme or plan for development and (2) notice
Quitclaim Deed
Transfers whatever right, title or interest in the property that the grantor has. Must still be marketable title
Easement Appurtenent Transfer
Burden - passes automatically w/ servient estate unless BFP w/out notice
Benefit - passes automatically
Notice Statutes
Race-Notice - BFP wins if w/out notice and records first
Notice - BFP wins if w/out notice
Reasonable Use Theory (IL)
owner can use as much percolating water as he wants as long as for beneficial purpose of overlying land and not wasteful
Riparian Doctrine (IL)
Water belongs to those who own the land bordering the water course; only liable if unreasonably interferes w/ others
Prior Appropriate Doctrine
Water belons to the state but right to divert and used can be acquired by individual
rights determined by first in time, first in right
Life Tenants Duties
Entitled to all ordinary uses and profits from the land
Must not commit waste and harm FI holders
Bright Line RAP Rules
(1) Gift to open class conditioned on survival more than 21 years - VIOLATE RAP
(2) Many Shifting Executory Interests Violate if no limit on time of vesting
Joint Tenancy (T-TIP)
(1) Time (simultaneous)
(2) Title (same instrument)
(3) identical
(4) Right to possess the whole
In IL no need for straw man - convey to self and X as JT
When one JT dies, property freed of their itnerest, including liens
Severance of a Joint Tenancy (SPaM)
(1) Severance and Sale - buyer is tenant in common w/ remaining JT(s)
(2) Partition - either voluntary, in kind or forced sale and
(3) Mortgage - Lien theory (IL/maj.) - does not severe JT; title theory (min.) severs JT
Tenancy by the Entirety (Recognized in IL)
Between married partners with the right of survivorship (presumed)
Creditors of only one spouse can’t touch tenancy and NO unilateral conveyance
In IL - divorce severs tenancy
Tenancy in Common (Presumed type of tenancy)
(1) Each coT owns individual part and right to possess the whole
(2) Interest is devisable, descendible and alienable
Rights and Duties of Co-Tenants (9) (CRIP PRRAW)
(1) Possess the whole unless wrongful ouster
(2) Rent from coT in exclusive possession only allowed in wrongful ouster
(3) Rent from 3rd parties based on fair share (60/40)
(4) No AP b/c lacks hostility requirement (absent ouster)
(5) Carrying Costs
(6) Repairs - right to contribution for reasonable and necessary repairs
(7) Improvements - no right to contribution, but credit to any increase in value
(8) Waste - Must not commit waste (voluntary, permissive, ameliorative)
(9) Partition - right to bring action (voluntary, in kind, forced sale)
Tenancy for Years
Fixed period of time and know termination date from the start (regardless if for 2 days) and no notice required
*Greater than 1 year = Writing b/c SOF
Periodic Tenancy
Continuous intervals until proper notice (based on interval) and must terminate at natural lease period
**IL - 60 days notice required for year-to-year
Holdover Tenant
If T wrongfully stays past conclusion of lease then implied periodic tenancy arises
*IL collection of double rent after end of lease and written demand
Tenants Duties (Landlord-Tenant)
(1) Liability to 3rd Parties (tort principles)
(2) Duty to Repair - if lease silent, maintain routine repairs other than ordinary wear and tear (can’t remove fixtures)
**T may end lease when premises destroyed
(3) Duty to Pay Rent - L can evict (no self-help);
If no rent = SIR: Surrender (if more than a year left must be in writing and tenant free from rent); Ignore (require payment; minority); Re-let (IL rule to mitigate)
Landlord Duties
(1) Deliver Possession (IL rule is give legal possesion (key) not actual possession)
(2) Implied Covenant of Quiet Enjoyment - applies to residential and commercial leases (IL only residential)
Can be breached by Wrongful eviction, constructive eviction (SING - Subs. Interference; Notice;Goodbye)
(3) Implied Warranty of Habitability (residential only) MR3 - Move, Repair and deduct, Reduce Rent, Remain in possession
Landlord Tort Liability (CLAPS)
The norm is caveat lessee EXCEPT
(1) Common Areas
(2) Latent Defects (duty to warn not repair)
(3) Assumption of repairs (if voluntary and negligent)
(4) Public Use
(5) Short term lease of furnished dwelling (L is liable)
Affirmative Easement (Must be in writing if express)
Created by PING: Prescription (AP, 20 years), Implied from prior use (apparent, expected to continue and necessary), Necessity, Grant
Easement Appurtenant transferred auto w/ dominant T
Burdened auto unless BFP and w/out notice
Easement in Gross not transferable unless commercial purposes
Negative Easement (LASS)
Light, Air, Support and Stremwater
Created only by writing signed by grantor
Real covenant
Created by writing signed by grantor
Burden runs WITHN: Writing, Intent, Touch and concern, Horizontal and vertical Privity, Notice (if restriction in chain of title = notice)
Benefit runs WITV: Writing, Intent, Touch and Concern, Vertical Privity
**right of first refusal = covenant
Equitable Servitudes
Writing signed by grantor (unless implied by general scheme)
Successors bound if WITNes: Writing, Intent, Touch and concern, Notice (no privity)
Termination of Easement (END CRAMP)
Estoppel
Necessity (expires when need ends)
Destruction of servient land
Condemnation of estate
Release - written release given to servient holder
Abandonment - phsyical action w/ intent to never use again
Merger - easement and servient land vested in the same person
Prescription - adverse possession
Types of Notice (AIR)
Actual - D literally knew
Inquiry - lay of the land/inspect
Record - public documents/recording statutes
Adverse Possession (CHAO)
Continuous (20 yrs in IL) - uninterrupted; except tacking as long as privity
Hostile - possessor does not have consent
Actual - entry must be literal
Open and Notorious - owner should be able to realize you are on the land
**Possessor state of mind is irrelevant
Time will toll if owner has disability AT START of possession
Payment of property taxes required to obtain AP under color of title (7 years)
Foreclosure Priority/Procedure
Priority is determined by the time mortgage placed on the property
At foreclosure, foreclosing party must include subordinate/junior interests or else pay off junior’s interest
Assignment Sublease Waiver
If owner consents to one transfer without reserving right to prohibit future transfers without consent, waives right to do so in the future
Statutory Redemption
Borrower has right PRIOR TO foreclosure sale to redeem land by paying off amount due, or if acceleration clause, full balance (some states give right after foreclosure)
Clogging Redemption = right to redeem cannot be waived in instrument
Land Contract
(1) must be in writing signed by party to be charged (except part performance by taking possession, paying all or part and/or making subs. improvement)
(2) Describe the land (pro rata price reduction)
(3) State some consideration
Risk of Loss - buyer until closing (*seller in IL)
Implied Promise in Land Sale K
(1) Provide Marketable title (free from lawsuits, encumbrances, zoning)
(2) Seller may not make any false statements of material fact or failing to disclose latent material defects
Implied Warranty of Fitness
ONLY applies to sale of new home and in IL that follows to subsequent buyers even though no privity
Passing Legal Title - Deed (LEAD)
(1) Lawful execution - writing and good lead to land description
(2) Delivery - physically transfers; present intent. Presumed delivered unless express rejection or still in possession at death
Quitclaim Deed
No covenants - still promises to provide marketable title
General Warranty Deed
Present Covenants: Seisin (owns estate); Right to Convey (power to transfer); and Against encumbrances (no servitudes or mortgages)
Future: Quiet enjoyment (3rd parties try to claim title); Warranty (grantor defends against claims); Further Assurances (do what needed to perfect title)
Statutory Special Warranty Deed
Grantor makes on behalf of self:
(1) hasn’t conveyed property to anyone else and
(2) free from encumbrances
Recording System - IL is Notice
2 Rules: BFP prevails if w/out notice (in notice jx)
BFP prevails if no notice and records before prior (race-notice)
*Notice refers to time of conveyance not time of recording
*Buyer of real estate has duty to inspect property
Shelter Rule
One who takes from BFP prevails against others that transferor-BFP would have prevailed against **EVEN IF HAD ACTUAL NOTICE OF PRIOR UNRECORDED CONVEYANCE
Estoppel by Deed
One who conveys realty in which he has no interest is estopped from denying validity of conveyance if later acquires property that was previously transferred
Liability of Debt on Mortgages
(1) Assume mortgage - both mortgagor and buyer personally liable
(2) Subject to mortgage - buyer assumes no personal liability
Foreclosure Proceeds
(1) Attorney’s fees, foreclosure expenses, interest
(2) Priority of mortgages entitled to full satisfaction
Subordinate interests are necessary parties to foreclosure sale and if not joined, mortgage remains
*Note PMM has superpriority
Redemption
(1) Redemption in equity - prior to foreclosure sale debtor can redeem (pay missed payments or full amount of acceleration) and cannot be waived
(2) Statutory Redemption - right to redeem after foreclosure sale
Lateral support
(1) If improved land caves in by excavators negligence = liable
(2) Strict liability if P shows that improvements on his land did not contribute to land’s collapse
Groundwater rights (percolating)
Water beneath surface entitles surface owner to make reasonable use of water if NOT wasteful
Surface Waters (IL) - Natural flow theory
Those from rain, springs or melting snow and have not reach natural watercourse
Landowner may change drainage or make other changes to combat flow of surface water
Profit
Nonpossessory interest in land; holder is entitled to enter the servient land and take substance
entitled to compensation in condemnation proceeding
