Real Property Flashcards
Real Property Issues
- Conveyancing
- Landlord-Tenant
- Concurrent Estate
- Covenants and Servitudes
Adverse Possession
- Open and Notorious (would put a reasonable person on notice that it was occurring)
- Actual and Exclusive (if only the possessor used the property)
- Hostile (lack of owner’s permission or consent)
- Continuous (constantly used for the purpose and in the manner that it was reasonably and normally intended)
- For Statutory Period
Easement By Prescription
Same as Adverse Possession but Exclusive Possession NOT required
Remainder
Vested Remainders
Contingent Remainders (subject to conditions)
Fee Simple Determinable
“so long as…” followed by possibility of reverter
Fee Simple Subject to Condition Subsequent
To A “but if property ceases to be…”; followed by right of re-entry subject to laches defense
Life Estate
Interest in property until death of the stated individual
Executory Interest
FSD or FSSCS followed by estate in third party
Merger (estates)
Where same person acquire both present and future estates, they merge into a fee title
Rule of Convenience
Absent contrary intention in the instrument to include all members of a class, whenever born, Class closes when each member of the class can call for distribution of her share (ex. at death of testator if gift is made in T’s will)
Rule Against Perpetuities
Future interest must vest, if at all, within the lives in being plus 21 years
applies only to
- contingent remainders,
- executory interests,
- class gifts,
- options and rights of first refusal, and
- powers of appointment
Validity of Interest
- will - date of T’s death
- revocable trust - date trust becomes irrevocable
- irrevocable trust - date created
- deeds - date deed delivered with intent to pass title
Concurrent Estates
- Joint Tenancy
2. Tenancy in Common
Joint Tenancy
Four Unities: JT must take interest:
- at the same time
- by same TITLE
- IDENTICAL equal INTEREST
- identical right to POSSESS the whole
and RIGHT OF SURVIVORSHIP
severance of JT results in tenancy in common
Tenancy in Common
2 or more own with NO right of survivorship
Severance of Joint Tenancy by Mortgage
Lien Theory (Majority)
- Execution of mortgage does not sever JT (parties remain JT).
- On death of mortgaging JT, lender loses interest
Title Theory States (minority)
- Execution of mortgage severs JT, JT become tenants in common
- death of mortgaging JT, heirs take TIC interest subject to mortgage
Ouster
Wrongful exclusion of a co-tenant from possession
Rights of Co-Tenants
- Right to possess all of the property
- Co-Tenant in possession has right to retain profits gained by use of property unless there is a written agreement to the contrary
- Co-tenant out of possession has right to pro rata share in rents from 3rd parties and in profits from uses that deplete property’s value
- Pro-rata apportionment for necessary repairs, taxes, payments on mortgages
- No reimbursement for improvements
- Co-tenant in sole possession who pays taxes and mortgages is only entitled to reimbursement in amount that exceeds rental value of the property
Landlord Tenant Analysis
- Type of lease
- Failure to pay rent
- Defenses to pay rent
- Issues from Assignment
Types of Leases
- Term of years - defined start and end date
- Periodic - undefined end date/automatic renewal (e.g. month to month)
- holdover - by consent
Termination of Lease
Lease controls.
Notice generally required
Duty to Mitigate on Breach of Lease Tenant
Landlord has duty to reasonably re-let premises
Failure to mitigate is a defense to non-payment of rent
Assignment of Lease
Complete transfer of entire remaining term of lease.
Absent express restriction in lease, T is free to transfer leasehold interest in whole or in part
Sublease
T retains some part of remaining term of the lease.
Sublessee not personally liable to L for rent or for performance of any of the covenants in the main lease unless sublessee expressly assumes covenants
Fixtures
Affixed to property such that removal would cause substantial damage to the property.
Tenant cannot remove fixtures UNLESS:
- written agreement; or
- Trade fixtures
Landlord Covenants
- Duty to Deliver Possession
- Quiet Enjoyment and Non-Disturbance (actual/partial eviction or constructive eviction)
- Warranty of Habitability
Tenant’s Covenants
- Pay Rent
- Repair and damage caused (maintain premises and make ordinary repairs)
- Not to commit waste (affirmative, permissive, ameliorative)
Actual/Partial Eviction
Physical eviction by landlord
Constructive Eviction
- Landlord breaches duty set out in the lease;
- Breach substantially and materially deprives tenant of use and enjoyment of premises
- Tenant moves out
remedy - termination if lease if done promptly
Warranty of Habitability
Property must be reasonably suitable for human residences.
Only applies to residential leases.
Remedies:
- Move out and terminate lease
- make repairs and deduct expenses from rent;
- sue for damage
- reduce rent in amount reduced by issue
Express Covenants
lease language or provisions,
only relevant to Assignments
For Covenant to run with the land, must find:
- intent; and
- touch and concern
traditionally - covenants were independent and breach did not excuse performance
modern - covenants are dependent and material breach is grounds to terminate lease and claim damages
Waste
- Voluntary - deliberate destructive acts
- Permissive - act of omission or neglect
- Ameliorative - alter property but result increases value
Easement
Right to use land for a particular purpose but no right to possess or enjoy that land.
Creation of Easement
- Express - by deed, SOF
- Implication - prior use over a long period of time amounting to consent. Apparent/continuous at time tract was divided, and reasonably necessary to enjoyment of dominant parcel (consider cost/difficulty of alternatives and whether price paid reflects continued use of the easement).
- By Necessity - where party asserting easement owns landlocked property AND two parcels were under common ownership at one time AND no prior use
- By Prescription - adverse possession
- Negative - use prohibited, NO negative easement prohibiting blocking of light absent written agreement
In Gross v. Appurtenant
In Gross - held irrespective of ownership of property; does not transfer between easement holders unless for commercial purposes
Appurtenant - held by dominant estate and burdens servient estate; transfers between holders
both easements transfer if transferee has NOTICE
Termination
In writing or orally plus action of abandonment.
- servient estate cannot terminate easement for overuse - limited to injunction
License
Revocable at will
arises either expressly of from failure of express easement.
may become irrevocable if licensee invests substantial amounts of money or labor in reliance on the license (estoppel)
covenants
binding promises regarding the use of the land.
applies to deeds and mortgages
Equitable Servitude
covenant that, regardless of whether it runs with the land, equity will enforce against assignee of the burdened land who had notice of the covenant
Covenant burden that runs with the land
- writing
- intent
- notice - actual, constructive, or inquiry
- horizontal privity
- vertical privity
- touch and concern the land
Covenant Benefit that runs with the land
- writing
- intent
- vertical privity
- touch and concern the land
ES burden that runs with the land
- servitude in writing
- burdened party has notice
- intent
- touch and concern
ES benefit that runs with the land
- writing
- benefited party has intent
- touch and concern
Conveyancing
To be valid, deed must be:
- executed
- delivered
- accepted
- adequate description of property
Quitclaim Deed
conveys only what the seller has and does not affect the warranty of marketable title which is in all contracts for the sale of real property
Marketable Title
Title reasonably free from doubt that a reasonably prudent buyer would be willing to accept.
Need only be delivered at closing
Title is not marketable if there is an undisclosed encumbrance or a condition that gives rise to a threat of litigation
Warranty Deed
Present covenants (breached at time of conveyance) of (1) seisin; (2) right to convey; and (3) against encumbrances
Future covenants (breached when there is a claim against title, if any) of (1) quiet enjoyment; (2) warranty; and (3) further assurances
Recording Statutes
- Race Statute - priority wins
- Notice Statute - subsequent BFP prevails over prior grantee who failed to record
- Race-Notice Statute - Subsequent BFP who records before prior grantee prevails over a prior grantee who failed to record
Mortgage
Conveyance of a security interest in land, intended by the parties to be collateral.
Debt and voluntary lien in debtor’s land to secure the debt
SOF requirements
Foreclosure of Mortgage
Extinguishes all junior mortgages recorded after the mortgage if notice is given.
Equitable Subrogation
Jr. mortgage pays off senior mortgage and steps into their position
Equitable Redemption
Mortgagor’s right to redeem by bringing loan current before foreclosure sale
Statutory Redemption
Mortgagor’s right to repurchase property by paying all indebtedness for 1 year after foreclosure sale
Deed of Trust
Security interest in property that can be recorded
Foreclosure of D/T
Non-Judicial Foreclosure -
- Trustee posts and records notice of default and election to sale.
- Trustor has 90 days to bring defaulted amount current
- after 90 days, Trustee may post and publish notice of Trustee’s Sale
- For 21 days, beneficiary can demand payment in full on note
- After 21 days, trustee can sell note to the highest bidder at public auction
Anti-Deficiency provisions prohibit award of deficiency judgments
Deficiency Judgment
Amount owed on note secured by mortgage or D/T is greater than the current value of the property securing the debt.
Lateral Support
Damage to Adjacent Property from Excavation.
- Strict Liability where land in its natural state subsides due to adjacent excavation and developed land subsides ONLY if it would have subsided in its natural state
- if not, liability for negligence
Subjacent Support
Damages to Property for Subsurface Mining or Tunneling.
- Strict liability only if previously built structure collapses.
- Negligence if subsequently built structures collapse
Water Rights
- Riparian Doctrine
2. Prior Appropriation Doctrine
Riparian Doctrine
Eastern States -
Majority - Water belongs to those who own land bordering watercourses and share right of reasonable use that must submit to the reasonable use rights of the other riparain owners
Minority - Riparian rights of an owner who owns multiple lots abutting the water are limited to smallest tract owned by that owner that is abutting the water
Factors:
- purpose of use
- extent of use
- destination of water
- alteration in the flow
Prior Appropriation Doctrine
Western States - Water belongs to the state
Right to divert and use water can be acquired by an individual determined by priority of beneficial use
Rights can be lost by abandonment (intent plus nonuse)
