real property Flashcards
(77 cards)
Real property
<p><strong>assignment/sublease</strong></p>
<p>Absent contrary language, a lease can be freely assigned or sublet. An assignment is a complete transfer of the remaining duration of the tenant’s leasehold estate. Any transfer for less than the entire duration is a sublease. An assignee tenant is liable to the landlord for rent and covenants that run with the land because he is in privity of estate with the landlord. In contrast, a subtenant is not liable to the landlord for rent or covenants because he is not in privity of estate or privity of contract with him.</p>
Real property
<p>real covenants</p>
<p>For a subsequent owner to enforce or be burdened by a covenant, the covenant must run with the land. When damages are sought as a response to a broken covenant, the covenant is referred to as a real covenant. For the burden of a real covenant to run with the land (1) it must be in writing, (2) there must be intent, (3) it must touch and concern the land, (4) there must be notice, and (5) there must be horizontal and vertical privity between the parties.</p>
Real property
<p>real covenant: writing</p>
<p>For a covenant to be enforceable, it must comply with the Statute of Frauds. </p>
Real property
<p>real covenant: intent</p>
<p>The parties must intend for the rights and duties to run with the land.</p>
Real property
<p>real covenant: touch and concern</p>
<p>The covenant must touch and concern the land. This means that the person seeking enforcement must establish that the benefit or burden affects both the promisee and promisor as owners of the land and not just as individuals. </p>
Real property
<p>real covenant: notice</p>
<p>A purchaser must have notice of the covenant for the burden of that covenant to run with the land. </p>
Real property
<p>real covenant: HP</p>
<p>For the burden to run, there must be horizontal privity. This means the original parties to a covenant must have privity of estate at the time the agreement creating the covenant is entered into. This means there must be some shared property interest apart from the covenant itself. This relationship between the parties is based on mutual or successive interest in the burdened land.</p>
Real property
<p>real covenant: VP</p>
<p>Vertical privity exists between an original party and a successor party only if title to the entire servient estate can be traced to the promisor. </p>
Real property
<p>Real covenant elements</p>
<p>1) writing
2) intent
3) touch and concern
4) VP and HP
5) notice</p>
Real property
<p>equitable servitude</p>
<p>When an injunction at equity is sought to enforce a covenant, it is called an equitable servitude. For an equitable servitude to run with the land (1) it must be in writing, (2) there must be intent, (3) it must touch and concern the land, and (4) there must be notice.</p>
Real property
<p>tenant's duty to pay rent</p>
<p>Every tenant has the duty to pay rent. This is a covenant that runs with the land. If the duty to pay rent is breached, the landlord can collect from anybody they are in privity of estate or contract with.</p>
Real property
<p>LL's ability to evict tenant</p>
<p>A landlord has the ability to evict a tenant if the tenant has breached a duty to the landlord or if the tenant is in wrongful possession of the property.</p>
Real property
<p>Implied Warranty of Habitability</p>
<p>When a property is leased for residential purposes, an implied warranty of habitability automatically attaches. This means that the landlord must maintain the property so that it is reasonably fit for normal residential use.</p>
Real property
<p>tenancy in common</p>
<p>Tenants in common have unified possession of an estate, which means they have an undivided interest with unrestricted rights to possess the whole, and such interest is freely devisable or transferable. Unlike a joint tenancy, there is no right of survivorship.</p>
Real property
<p>joint tenancy</p>
<p>To create a joint tenancy, you need express language creating a joint tenancy and presence of the “four unities:” equal rights to possess the whole, with identical equal interests, created at the same time and by the same title instrument. Joint tenants have a right of survivorship and the interest is alienable, but not devisable. A joint tenancy is severed by sale, partition, or a mortgage in a title theory jurisdiction.</p>
Real property
<p>tenancy by the entirety</p>
<p>A tenancy by the entirety requires the same unities as a joint tenancy—time, title, interest and possession, plus the additional unity of marriage between two people. Tenants by the entirety have the right of survivorship, and neither cotenant can unilaterally defeat this right by conveyance to a 3rd party.</p>
Real property
<p>cotenants' rights/obligations</p>
<p>A cotenant in exclusive possession of an estate is not liable to other cotenants for rents (unless from a 3rd party) or profits. Cotenants can collect for operating expenses, but not for contribution for reasonable repairs and improvements unless there is an accounting or partition.</p>
Real property
<p>tenancy for years</p>
<p>A tenancy for years is a tenancy created by express agreement for a fixed period of time. It is subject to the statute of frauds if the period of time is greater than one year.</p>
Real property
<p>periodic tenancy</p>
<p>A periodic tenancy is a repetitive, ongoing estate measured by set periods of time that automatically renew at the end of each period unless there is a valid termination notice. A writing is not required.</p>
Real property
<p>tenancy at will</p>
<p>A tenancy at will has no fixed period of time, parties must expressly agree to it, or one can be implied by regular rent payment, and it may be terminated by either party at any time.</p>
Real property
<p>tenancy at sufferance</p>
<p>A tenancy at sufferance is created when a tenant wrongfully holds over past the expiration of his lease, and lasts until the landlord evicts the tenant or converts the tenancy into a periodic tenancy.</p>
Real property
<p>four types of tenancies</p>
<p>1) tenancy for years
2) periodic tenancy
3) tenancy at will
4) tenancy at sufferance</p>
Real property
<p>tenant's duties</p>
<p>A tenant has a duty to pay rent, avoid waste and to make reasonable repairs. A landlord can sue tenant for damages and evict him for failure to pay rent.</p>
Real property
<p>landlord's duties</p>
<p>A landlord must deliver actual possession to tenant, and has a duty to make residential repairs. A landlord also owes to a residential tenant a warranty of habitability and a covenant of quiet enjoyment.</p>
adverse possession
To obtain ownership over property by adverse possession, plaintiff’s possession must be continuous, actual, open and notorious, hostile, and exclusive.
valid deed
1) identify the parties involved, 2) grantor's signature 3) words of transfer 4) reasonably definite property description
delivery of deed
At the time of transfer, the grantor must intend to make a present transfer of the property interest to the grantee.
notice jdx
In a notice jurisdiction, a purchaser for value without notice of the prior interest prevails over the prior grantee who failed to record.
race jdx
In a race jurisdiction, the first to record prevails, regardless of knowledge of prior conflicting interests.
race-notice jdx
In a race-notice jurisdiction, a subsequent purchaser for value without notice is protected only if he takes without notice and is first to record.
actual notice
A grantee possessing actual, personal knowledge of a prior interest cannot prevail under a notice or race-notice recording statute.
inquiry notice
If a reasonable investigation would have disclosed the existence of prior claims, then the grantee is considered to possess inquiry notice, and cannot prevail against those prior claims.
constructive notice
Grantees are held to have constructive notice of all prior conveyances that were properly recorded.
easement
An easement is the right held by one person to make specific, limited use of land owned by another. The land that is subject to the easement is the servient estate, whereas the land that benefits from an easement on a servient estate is the dominant estate.
real covenant: writing
For a covenant to be enforceable, it must first comply with the Statute of Frauds.
real covenant: intent
The parties must intend for the rights and duties to run with the land.
real covenant: touch and concern
The covenant must “touch and concern the land,” which generally means that the person seeking enforcement must establish that the benefit or burden affects both the promisee and the promisor as owners of land and not merely as individuals.
real covenant: notice
Under the recording acts, a subsequent purchaser without notice of a burdening covenant is not bound by it.
real covenant: horizontal privity
For the burden to run, the original parties to the covenant must have horizontal privity of estate at the time the agreement creating the covenant is entered into. [estate and the covenant contained in the same instrument]
real covenant: vertical privity
The successor to property can be held to the covenant only if title to the entire servient estate can be traced back to the promisor through vertical privity.
equitable servitude
For an equitable servitude to be enforced at equity, it must be in writing. There must also be intent, the servitude must touch and concern the land, and the person against whom the servitude is to be enforced must have notice of the servitude.
land sale contract
1) written 2) signed by the party to be charged 3) essential terms (PPP)- parties, description of property, price and payment info
implied covenant of marketable title
1) title is free from an unreasonable risk of litigation at the time of closing (but not earlier) 2) reasonable buyer std- will this expose me to litigation 3) remedy is rescission
implied warranty of fitness or suitability
1) seller asserts that he used adequate materials and good workmanship to build the home (new construction) 2) initial and sub. purchasers may recover damages (maj) 3) must sue w/in reasonable time
duty to disclose defects to buyer
seller must disclose to buyer all known, physical, material defects (no general disclaimers)
risk of loss- Doctrine of Equitable Conversion
buyer holds equitable title between execution of k and closing and delivery of the deed, so responsible for any loss; seller is legal title owner, has right to possess (man). However, seller is liable for loss attributable to its intentional or negligent acts.
doctrine of marshaling of assets
junior lien holders may petition court to protect their interests and foreclose first properties with no junior security interests
5 types of easements
1) express 2) implied 3) by necessity 4) by prescription 5) by estoppel
easement by necessity
1) common ownership 2) when severed into 2, one lot became landlocked 3) terminates when it no longer necessary (merger; alternate route)
easement by implication
1) common ownership 2) quasi easement (tract used as if there is an easement before severance) 3) continuous and apparent use at severance 4) use reasonably necessary to the dominant estate's use and enjoyment
easement by prescription
1) continuous USE for statutory period 2) open and notorious 3) hostile 4) no exclusivity requirement- can use with the owner
easement by estoppel
1) existence of a license 2) detrimental reliance on landowner's promise 3) license is revoked
7 ways to terminate an easement
1) express written release 2) merger 3) abandonment 4) prescription 5) sale to BFP 6) estoppel 7) end of necessity
abandonment of covenant
A covenant can be terminated by abandonment if the parties to the covenant act in an affirmative way that shows a clear intent to relinquish the covenant right; mere nonuse, however, or statements of intent without affirmative conduct, will not constitute abandonment.
license
1) a license is a non-possessory right to enter the land of another for some delineated purpose 2) a license is revoked on the transfer of the servant estate 3) invalid oral easement create revocable license
private nuisance (RP)
a private nuisance is a Substantial, Unreasonable Interference with another individual's use or enjoyment of his property. The interference must be intentional, negligent, reckless, or the result of abnormally dangerous conduct.
public nuisance (RP)
A public nuisance requires the defendant to unreasonably interfere with the health, safety, or property rights of the community.
tenant's duties
1) pay rent 2) avoid waste 3) repair
Duty to pay rent- LL's remedies
1) sue tenant for damages | 2) evict tenant
when duty to pay rent excused
1) premises destroyed 2) T is evicted (actually or constructively) 3) LL materially breaches the lease
constructive eviction
T is constructively evicted when LL makes premises substantially unsuitable for T's intended purpose. 1) premises were unsuitable for their intended purposes 2) T notified LL of the problem 3) LL does not correct the problem 4) T vacates premises after reasonable time
IWH
premises must be fit for basic human habitation (health/safety), and if breached, T must notify LL of the problem, and give LL a reasonable opportunity to correct it. Then T can: 1) refuse to pay rent, 2) make reasonable repairs and deduct cost from future rent, or 3) remain in possession, pay rent and seek damages
types of eviction
1) actual 2) partial 3) constructive
actual eviction
L wrongfully evicts/excludes T from premises
partial eviction
T excused from paying rent for L's partial eviction, but must pay reasonable rental value if partial eviction by third party with superior claim, not excused for adverse possessor/trespasser
LL duties
1) deliver possess (or no rent) 2) repair ( 3) IWH (residential) 4) CQE (residential or commercial) 5) eviction
present covenants
1) seisin (grantor owns land as described in deed) 2) right to convey (grantor has right to sell) 3) against encumbrances (no undeclared encumbrances against land)
future covenants
4) quiet enjoyment (grantee not disturbed in possession by 3p superior claim) 5) warranty (grantor will defend grantee against any lawful claims) 6) further assurances (grantor will do whatever future acts reasonably necessary to pass title if later determined title is imperfect)
fixtures
structures built on RP and items incorporate into structure become part of realty
removal of fixtures
can be removed if: 1) seller reserves right to remove in sale k 2) leased property can be restored to former condition w/o damage in reasonable time
negative easement
1) prevents owner from using land in specific ways 2) must be expressly created by writing signed by grantor 3) usually only recognized for light/air/support/stream water from artificial flow
scope of easement
1) court looks to reasonableness of use and 2) intent of parties 3) ambiguities resolved in favor of grantee
implied reciprocal servitude
1) intent to create servitude on all plots (common scheme) 2) negative servitude 3) notice
priority of mortgagee vs security in fixture
The general rule is that when there is a conflict between the mortgagee of real property and the holder of a security interest in a fixture attached to the real property, the first to record has priority over the fixture.
is judgment creditor a purchaser for value?
only if the court rules for him. Because the court ruled against the creditor, the jurisdiction, like a majority of jurisdictions, must not treat a lien creditor as a purchaser for value.
RAP and right of first refusal
majority rule treats a right of first refusal as subject to the Rule Against Perpetuities. There is an exception where the right is given in conjunction with a lease.
