Real Property Flashcards
Tacking
Periods of adverse possession of different parties can be aggregated (tacked) together to reach the statutory AP period if the parties are in privity of estate.
covenants in a general warrantee deed (six)
1) Seisin (seller’s ownership and possession of the land)
2) right to convey
3) covenant against encumbrances
4) covenant of quiet enjoyment (no adverse title claims will come)
5) covenant of warranty
6) covenant of further assurances
Adverse possession of land with an easement
The adverse possessor acquires the same title held by the original owner, and takes property burdened by an easement subject to that easement, unless he can show that he adversely possessed the easement as well.
Privity of estate
if there has been an intentional transfer of possession between the parties.
Abandonment of an easement
Elements:
(1) non-use of the easement AND
(2) some act which is evidence of an intent to abandon.
If someone gives permission to an adverse possessor to be on the land…
…if it is the owner, then not hostile, so no AP.
But if someone else gives permission, then it is still hostile, can count towards AP.
Do covenants bind Adverse Possessors?
Every possessory interest in land is bound by an equitable covenant burdening that land. Commentators have suggested that an adverse possessor would be bound by an equitable restriction, although no case has so held. One theory is that the adverse possessor’s occupation of the property was not adverse to the rights of those who would enforce the equitable restriction, and so they have not sat on their rights.
Boundary line agreements
As a general rule, judicial recognition is extended to boundary-line agreements, even if not executed with the formalities prescribed by the Statute of Frauds. Application of the doctrine usually requires proof that the parties were not informed as to the true boundary line, that there was an express or implied agreement as to its location, and that possession conformed to the agreement.
Lateral and Subjacent support
A landowner who engages in activities that cause the subsidence of unimproved land on an adjacent parcel is strictly liable for resulting damage.
For improves land the standard is negligence.
Constructive Eviction
For a constructive eviction to exist, all of the following must occur:
1) The landlord must withhold something essential to the full enjoyment of the property that is included within the terms of the lease or is required by statute
2) The landlord’s act or failure to act must substantially and permanently interfere with the tenant’s use and enjoyment of the premises
3) The tenant must move out.
Landlord’s acceptance of tenant’s surrender of the premises
Where a tenant surrenders his lease, the landlord may choose to accept the surrender or enforce the terms of the lease. If the landlord accepts, the tenant is no longer bound by the lease.
Acceptance of the surrender can be either express or implied by operation of law. An acceptance will be implied by operation of law where the tenant is able to prove that the landlord has taken unequivocal steps toward accepting the surrender. Retention of the keys by the landlord, without more, will not constitute acceptance
Equitable Conversion
When a land-sale contract is formed, at that point there is a bifurcation of title.
a) Equitable title: passes to the buyer
b) Legal title: remains with the seller until the deed closes
Under the majority approach: risk of loss (along with appreciation benefits) is deemed to follow equitable title, and therefore the risk of loss is on the buyer unless the parties have made other arrangements
Uniform Vendor and Purchaser Risk Act
Under this minority rule, after contract for sale of land, the risk of loss remains with the seller until there legal title or possession of the property has passed to the buyer
Zoning law effect on marketability
Zoning laws only violated the warranty of marketability if there is a current zoning violation. Zoning laws that may conflict with the buyer’s intended future use to not affect marketablilty.
Affect of encroachment on marketablity
a slight encroachment from adjacent property will not render title undermarketable. A more significant encroachment might render title unmarketable.
duty of landowners to known trespassers
to exercise reasonable care to warn of hidden dangers
estoppel by deed
if someone sell property that they don’t have and then they somehow get it, the are estopped from claiming ownership, and it goes to the buyer
the Rule in Dumpor’s Case
a covenant against assignment, once waived, is unenforceable as to subsequent assignments. However, the landlord can reserve the right to restrict future assignments by expressly stating that the waiver is a one-time occurrence.
If a lease is assigned (once or multiple times), who can the landlord sue?
If assignment was permitted, assignee and assignor are jointly and severally liable.
If assignment was not permitted, LL can choose to sue assignee, thereby ratifying the assignment, and original tenant is also still liable.
If multiple assignees, original tenant (in privity of contract) and final (permitted) assignee, are jointly and severally liable.
Covenant against encumbrances
a covenant assuring that there are no encumbrances (such as easements, liens, mortgages) against the title.
covenant of warranty
covenant wherein the grantor agrees to defend the grantee against claims of title by a third party, and to compensate the grantee for any loss sustained by the claim of superior title.
to whom is a party who interferes with the use and enjoyment of rented property liable (i.e. nuisance tort)?
only to the renter/current possessor, not to the landlord, who has no standing to sue
functional equivalency doctrine
applies in situations where there is a foreclosure, the purchaser who has paid a substantial portion of the purchase price is entitled to a redemption right (because in Installment Land Sale Contract is the functional equivalent of a mortgage)
upsetting a foreclosure sale
In order to upset the sale, a mortgagor must show fraud in the conduct of the sale and the inadequacy of the sale price. A party not paying fair market value is not enough alone to upset the sale.
