Real Property LAST PUSH Flashcards
Joint Tenancy - Four Unities
joint tenants must take their interests:
(1) at the same time
(2) by the same title
(3) identical equal interests and
(4) with rights to posses the whole
Joint Tenancy Severance
Sale and Partition
Joint Tenancy Severance and Sale
a joint tenant may sell or transfer their interest during their lifetime - voluntary conveyance destroys joint tenany
Joint Tenancy Severance and Partition
three types of partition
(1) by voluntary agreement
(2) by judicial action called partition in kind
(3) by judicial action called forced sale
Partition by Voluntary Agreement
an allowable and peaceful way to end the relationship
Partition in Kind
an action for a physical division of the property which is in the best interest of the parties
Forced Sale
an action when, in the best interest of all parties, the land is sold and the sale proceeds are divided up proportionally
Severance of Tenancy by the Entirety
(a) death
(b) divorce
(c) mutual agreement
(d) execution by a joint creditor of both the spouses can sever
Tenancy in Common Termination
may be terminated by partition
Periodic Tenancy by Implication
(a) the land is leased with no mention of duration, but provisions made for the payment of rent in intervals
(b) an oral term of years in violation of the S.O.F.
(c) if the landlord elects to holdover a residential tenant who has wrongfully stayed past the conclusion of the original lease
Tenant’s Primary Duties
(1) routine repair
(2) pay rent
(3) don’t commit waste
Tenant Breaches But is Out of Possession
(1) surrender - landlord can choose to treat the tenant’s abandonment as an implicit offer of surrender, which the landlord accepts, thereby ending the lease
(2) Ignore - ignore the abandonment and hold the tenant responsible for the unpaid rent until the natural end of the lease, just as if the tenant were there
(3) re-let the premises on the wrongdoer tenants behalf, and hold the wrong doer liable for the deficiency
Breach by Wrongful Eviction
(1) actual eviction
(2) partial eviction
(3) constructive eviction
Actual Eviction
occurs when the landlord, a paramount title holder, or a hold over tenant excludes the tenant from the entire leased premises
Partial Eviction
occurs when the tenant is physically excluded from only part of the lease premises
Constructive Eviction
when the landlord’s breach of duty renders the premises unsuitable for occupancy
When a Landlord is Liable for Breach of Other Tenants
(1) a landlord has a duty to abate a nuisance on site
(2) a landlord must control common area
Tenants Entitlement when Implied Warranty of Habitability is Breached
(1) move out and terminate the lease
(2) repair and deduct
(3) reduce rent or withhold until court determines fair rental value
(4) remain in possession, pay full rent, and affirmatively seek money damages
Five Exceptions to Caveat Lessee
(1) common areas
(2) latent defects
(3) assumption of repairs
(4) public use rule
(5) short term lease of furnished dwelling
Negative Easements are Generally Recognized in Four Categories
(1) Light
(2) Air
(3) Support
(4) Stream water from an artificial flow
Creating of Negative Easement
can only be created expressly by a writing signed by the grantor
Easement Appurtenant
when it benefits the holder in his physical use or enjoyment of his own land
two parcels involved:
(a) a dominant tenement
(b) servient tenement
Easement in Gross
if it confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment
common examples:
(1) right to place a billboard
(2) right to swim
(3) utility company’s right to lay power lines on anothers lot
Easement Appurtenant Transferability
passes automatically with transfers of the dominant tenement, regardless of whether it is even mentioned in the conveyance
Easement Appurtenant Burden on Servient Estate
passes automatically with the servient estate, unless the new owner is a bona fide purchaser without notice
Easement in Gross Transferability
not transferable unless it is for commercial purposes
Easement Creation
(1) prescription
(2) implication
(3) necessity
(4) grant
Easement by Prescription Elements
(a) continuous and uninterrupted use for the given statutes period
(b) open and notorious use
(c) actual use that need to be exclusive
(d) hostile use
Termination of an Easement
(1) Estoppel
(2) necessity
(3) destruction
(4) condemnation
(5) release
(6) abandonment
(7) merger
(8) prescription
Licenses
freely revocable, at the will of the licensor, unless estoppel applies
Covenant v Equitable Servitude
(a) if plaintiff wants money, construe the promise is a covenant
(b) if plaintiff wants injunction, construe the promise as equitable servitude
Requirements for Burden to Run
(1) writing
(2) intent
(3) touch and concern
(4) horizontal and vertical privity
(5) notice
Horizontal Privity
original promising parties - succession of estate, grantor-grantee, landlord-tenant, mortgage-mortgagee
Vertical Privity
nexus between successor in interest and the originally covenanting party
Requirements for Benefit to Run
(1) writing
(2) intent
(3) touch and concern
(4) vertical privity
Equitable Servitude
promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is bonda fide purchaser
Creation of Equitable Servitude
(1) writing
(2) intent
(3) touch and concern
(4) notice
Common Scheme Doctrine
(1) the subdivider had a general scheme of residential development which included the defendant’s lot and
(2) the defendant lot holder had notice of the promise contained in those prior deeds when it took
Equitable Defenses to Enforcement of Comon Scheme
(a) neighborhood conditions have changed
(b) unclean hands
(c) acquiescence
(d) estoppel
(e) laches
Common Scheme Termination
(1) written release from the benefit holders
(2) merger of the benefited and burden estates
(3) condemnation
Adverse Possession
(1) continuous
(2) open and notorious
(3) actual and exclusive
(4) hostile
Part Performance Exception to Statue of Frauds
(1) oral contract is certain and clear
(2) acts of partial performance clearly prove the existence of a contract
Title is Unmarketable
(1) defects in the record chain of title
(2) encumbrances - mortgages, liens, restrictive covenants, easements, options to purchase
(3) zoning violations
Failure to Disclose
(1) seller must know or have reason to know of the defect
(2) seller must realize that the buyer is unlikely to discover the defect
(3) defect must be serious enough that the buyer would probably reconsider the purchase
Time is of the Essence
(1) the contract states so
(2) the circumstances indicate that was the parties intent
(3) one party gives the other notice time is of the essence
Lawful Execution of a Deed
(1) writing signed by the grantor
(2) unambiguous description of the property
(3) identification of the parties by name or description
(4) words of intent to transfer
(5) delivery
Delivery of Deed is Presumed
(1) grantee has possession of the deed
(2) handed to the grantee
(3) acknowledged by the grantor in front of notary
(4) recorded
Quitclaim Deed
grantor isnt even promising that they have title to convey - conveys only what the grantor has at the time of conveyance
General Warranty
warrants against all defects in title, including those attributable to grantor’s predecessors
Six Covenants in General Warranty Deed
(1) covenant of seisin
(2) covenant of the right to convey
(3) covenant against encumberances
(4) quiet enjoyment
(5) covenant of warranty
(6) covenant for further assurances
Special Warranty Deed
deed contains the same covenants as the general, but here the grantor makes those promises only on behalf of himself
Fraudulent Conveyances
(1) with actual intent to hinder, delay, defraud, any creditor of the grantor
(2) without receiving a reasonably equivalent value in exchange for the transfer and the debtor was insolvent or became insolvent as a result of the transfer
Closing Disclosure
3 business days prior to closing
(1) principal, interest, payment amounts
(2) closing costs
(3) potential surprises to mortgagors
(4) cash required to close
Assumption of Mortgage
theyre agreeing to be personally liable on the mortgage note
Subject to Mortgage
they are not agreeing to personal liability; the mortagees only recouse is foreclosure
Cumulative Zoning Ordinance
creates a hierarchy of uses of land, where a single family home is the highest use, followed by a two family home, and then apartment, factory etc
Noncumulative Zoning Ordinance
under a noncumulative zoning ordinance, land may be used only for the purpose for which it is zoned
Groundwater Rights
(1) absolute ownership doctrine
(2) reasonable use
(3) correlative rights
(4) appropriate rights doctrine
Restatement Approach to Groundwater Rights
may pump groundwater, unless
(1) unreasonably harms neighboring landowners
(2) exceeds the reasonable share
(3) directly and substantially effects surface waters and unreasonably harms surface water users
