Real Property (MBE) Flashcards
1
Q
Concurrent Estates: Joint Tenancy
A
Two or more owners with RIGHT OF SURVIVORSHIP, meaning upon death of one owner the property it does not become a part of the estate, rather it devises to the other joint owner.
2
Q
Concurrent Estates: Joint Tenancy - Alienability
A
A joint tenant’s interest is alienable INTER VIVOS (transferable during lifetime), NOT devisable or descendible
3
Q
Concurrent Estates: Joint Tenancy - Creation
A
Four unities (PITT):
1) Possession,
2) Interest (must be EQUAL),
3) Time, and
4) Title
4
Q
Concurrent Estates: Joint Tenancy - Severance and Sale
A
A joint tenant may sell or transfer his interest during his lifetime, which destroys the joint tenancy and creates a tenancy in common.
If there are more than two joint tenants, the remaining joint tenants still have their joint tenancy relationship.
5
Q
Concurrent Estates: Joint Tenancy - Severance and Partition Types
A
1) Voluntary agreement
2) Partition in Kind - physical division of the property
3) Forced Sale - land is sold and proceeds are divided proportionately.
6
Q
Concurrent Estates: Joint Tenancy - Transactions That Will Not Impact Severance (Lien Theory v. Title Theory)
A
Lien Theory (Majority View) - if a joint tenant encumbers his share as collateral in a mortgage, the bank only has a LIEN INTEREST in the property, not enough to sever the joint tenancy
Title Theory (Minority View) - Encumbrance by putting a mortgage on a property WILL sever joint tenancy.
Murder, when a beneficiary unlawfully and intentionally kills a joint tenant, the property is transformed into a tenancy in common.
7
Q
Concurrent Estates: Tenancy by the Entirety
A
A MARITAL estate akin to a joint tenancy, but both owners must be married, each having a right of survivorship
8
Q
Concurrent Estates: Tenancy by the Entirety - Creation
A
A tenancy by the entirety is automatically presumed in any conveyance to married partners, UNLESS the language of the grant clearly indicates otherwise.
9
Q
Concurrent Estates: Tenancy by the Entirety - Protections
A
Creditors of only one spouse CANNOT touch this tenancy for satisfaction of debt AND unilateral conveyances by one spouse cannot defeat right of survivorship.
10
Q
Concurrent Estates: Tenancy by the Entirety - Severance
A
Only death, divorce, mutual agreement, or execution by a joint creditor of BOTH spouses can sever a tenancy by the entirety.
On divorce, the tenancy becomes a tenancy in common.
11
Q
Concurrent Estates: Tenancy in Common
A
A concurrent estate with NO RIGHT OF SURVIVORSHIP, with each co-tenant owning an individual part and a RIGHT TO POSESS THE WHOLE. This interest is DIVISABLE, DESCENDBILE and ALIENABLE.
12
Q
Concurrent Estates: Rights and Duties of Co-Tenants - Possession
A
Each co-tenant has the right to possess all portions of the property, but has NO RIGHT to exclusive possession of any part, and doing so creates the claim for OUSTER.
13
Q
Concurrent Estates: Rights and Duties of Co-Tenants - Rents and Profits from Co-Tenant in Exclusive Possession
A
A co-tenant in exclusive possession has the right to retain profits from their use of the property without sharing with other tenants, UNLESS profits come from exploitation of the land (e.g., mining or farming).
14
Q
Concurrent Estates: Rights and Duties of Co-Tenants - Rents and Profits from Third Parties
A
A co-tenant who leases all or part of the premises to a third party MUST account to their co-tenants, providing them a share of the rental income.
15
Q
Concurrent Estates: Rights and Duties of Co-Tenants - Adverse Possession
A
Unless they’ve ousted the other co-tenant, adverse possession CANNOT be acquired by excluding the other co-tenant
16
Q
Concurrent Estates: Rights and Duties of Co-Tenants - Carrying Costs
A
Each co-tenant pays their fair share of carrying costs (i.e., taxes and mortgage interest payments)
17
Q
Concurrent Estates: Rights and Duties of Co-Tenants - Repairs
A
Repairing co-tenant enjoys the right to contribution for any necessary repairs PROVIDED he has notified the other co-tenants of the need.
18
Q
Concurrent Estates: Rights and Duties of Co-Tenants - Improvements
A
There is NO RIGHT to contribution for “improvements” unilaterally made without the consent of the other co-tenant.
At partition, the improver gets a credit equal to any VALUE INCREASE or a debit to any VALUE DECREASE attributable to the unilateral improvement
19
Q
Concurrent Estates: Rights and Duties of Co-Tenants - Effect of One Concurrent Owner Encumbering the Property
A
A joint tenant or tenant in common MAY encumber her interest, but MAY NOT encumber the interest of the other tenant. A mortgage or lien DOES NOT sever a joint tenancy, but a foreclosure sale WILL.
20
Q
Concurrent Estates: Rights and Duties of Co-Tenants - Partition
A
A joint tenant or tenant in common has a right to bring an action for partition (voluntary, partition in kind, and forced sale). Courts prefer partition in kind, but will permit partition by sale if fair and equitable division of property cannot be made. Temporary restraints on partition by co-tenants are VALID, provided they are reasonable in time.
21
Q
Concurrent Estates: Rights and Duties of Co-Tenants - Duty of Fair Dealing
A
A confidential relationship exists among co-tenants and one co-tenants acquisition of an outstanding title or lien that may affect the estate is DEEMED TO BE ON BEHALF OF OTHER CO-TENANTS.
22
Q
Landlord Tenant: Leasehold Estates
A
1) Tenancy for Years,
2) Periodic Tenancy,
3) Tenancy at Will,
4) Tenancy at Sufferance
23
Q
Landlord Tenant: Leasehold Estates
A
1) Tenancy for Years,
2) Periodic Tenancy,
3) Tenancy at Will,
4) Tenancy at Sufferance
24
Q
Landlord Tenant: Tenancy for Years
A
A lease for a known FIXED PERIOD of time.
25
Landlord Tenant: Tenancy for Years - Termination
A tenancy for years ends AUTOMATICALLY at its termination date, NO NOTICE NEEDED.
26
Landlord Tenant: Tenancy for Years - Termination Upon Breach
Landlord reserves a RIGHT OF ENTRY, which allows them to terminate the lease if the tenant breaches any of the lease's covenants (e.g., failure to pay rent).
27
Landlord Tenant: Tenancy for Years - Termination Upon Tenant's Surrender
A tenancy for years may also terminate if the tenant surrenders and the landlord accepts, if the unexpired term exceeds one year IT MUST BE IN WRITING
28
Landlord Tenant: Tenancy for Years - Writing
Terms greater than ONE YEAR must be in WRITING.
29
Landlord Tenant: Periodic Tenancy
A lease which continues for successive intervals (e.g., month to month) until either the landlord or tenant gives proper notice of termination.
30
Landlord Tenant: Periodic Tenancy - Creation
Either expressly or by implication in the following ways: (i) land is leased with NO MENTION of duration, but provisions is made for rent to be paid in intervals, (ii) an ORAL TERM OF YEARS in violation of the SOF, or (iii) in a residential lease, a landlord elects to HOLD OVER a tenant who has wrongfully stayed on past the original lease
31
Landlord Tenant: Periodic Tenancy - Termination
Terminated by notice, usually written. At common law, the notice must be at least equal length to the tenancy period (e.g., month to month = one month), HOWEVER, a tenancy that is year-to-year requires ONE MONTH notice.
32
Landlord Tenant: Tenancy at Will
A tenancy for no fixed period of duration, terminable at the will of either the landlord or tenant (e.g., "To T for as long as L or T desires").
33
Landlord Tenant: Tenancy at Will - Creation
Generally, created by an express agreement that the lease can be terminated at any time. Without it, courts will treat the regular payment of rent as an implied periodic tenancy.
34
Landlord Tenant: Tenancy at Will - Termination
A tenancy at will can be terminated by either party at any time. However, most states REQUIRE NOTICE AND REASONABLE TIME to terminate. A tenancy at will can also be terminated by OPERATION OF LAW (e.g., death or commission of waste).
35
Landlord Tenant: Tenancy at Sufferance - Creation
A tenancy at sufferance occurs when a tenant WRONGFULLY remains in possession past the expiration of the lease.
36
Landlord Tenant: Tenancy at Sufferance - Termination
The tenancy at sufferance lasts until the landlord either EVICTS the tenant or ELECTS to hold the tenant to a new tenancy. No notice of termination is required.
37
Landlord Tenant: Hold-Over Doctrine
If a tenant continues in possession after their right to possession has ended, the landlord may: (i) EVICT the tenant, or (ii) bind the tenant to a NEW PERIODIC TENANCY
38
Landlord Tenant: Hold-Over Doctrine - Commercial Tenants
Commercial tenants may be held to a year-to-year periodic tenancy if the original term was for one year or more. If less than one year, a month to month will be created.
39
Landlord Tenant: Hold-Over Doctrine - Residential Tenants
Residential tenants are held to a new MONTH-TO-MONTH tenancy, REGARDLESS of original term. If the landlord notifies the tenant BEFORE the lease expires, that occupancy after the termination will be at an increased rent (holdover = consent to increase in rent)
40
Landlord Tenant: Leases - Dependence of Lease Covenants
At common law, if a party breached a covenant in a lease, the other party could recover damages but the landlord-tenant relationship continued.
The modern view is that the landlord can terminate the lease for nonpayment of rent, and the tenant can terminate the lease when the landlord breaches the covenant of quiet enjoyment or implied warranty of habitability.
41
Landlord Tenant: Leases - Options to Purchase
In general, the option to purchase real property through a lease LASTS AS LONG AS THE LEASE. The party granting the option may keep the consideration REGARDLESS of whether the option is exercised.
42
Tenant's Duties
A tenant has TWO primary duties: (1) to repair, and (2) to pay rent.
43
Tenant's Duties: Duty to Repair When Lease is Silent
A tenant need only MAINTAIN the premises for ROUTINE REPAIRS routine repairs, EXCEPT ordinary wear and tear replacements
44
Tenant's Duties: Duty to Repair - Waste
A tenant's duty of repair includes the duty NOT TO COMMIT WASTE.
45
Tenant's Duties: Duty to Repair - Express Covenant in Lease
If the tenant has expressly covenanted in the lease to maintain the property in good condition, at COMMON LAW, a tenant would be responsible for ANY loss to the premises.
HOWEVER, today the MAJORITY VIEW is if a RESIDENTIAL tenant covenants to repair, the landlord still remains obligated to repair (unless damages caused by tenant) under the NONWAIVABLE IMPLIED WARRANTY OF HABITABILITY. A NON-RESIDENTIAL tenant's covenant to repair IS ENFORCEABLE
46
Tenant's Duties: Duty to Pay Rent - Breach, But Tenant is In Possession
If a tenant fails to pay rent, the landlord can EVICT and sue for rent or CONTINUE the relationship and sue for rent due.
47
Tenant's Duties: Duty to Pay Rent - Self-Help
The landlord MUST NOT ENGAGE IN SELF-HELP, such as changing locks, forcibly removing the tenant, or removing any of the tenant's possessions.
48
Tenant's Duties: Duty to Pay Rent - Breach, But Tenant is Not In Possession
Landlord has the option to (SIR): (1) treat the tenant's abandonment as a SURRENDER of the premises, thereby ending the lease, (2) IGNORE the abandonment and hold the tenant responsible for unpaid rent (available in MINORITY of states), or (3) RE-LET the premises (required under MAJORITY rule).
49
Tenant's Duties: Duty to Pay Rent - Rent Security Deposits
Most states restrict the amount of security deposits to ONE MONTH'S RENT, and allow statutory or punitive damages for a landlord's improper refusal to return. Any clause to avoid these laws are VOID. The landlord is permitted to retain a SECURITY deposit for damages ACTUALLY SUFFERED to the premises
50
Tenant's Duties: Condemnation of Leasehold by Eminent Domain
If the ENTIRE leasehold is taken by eminent domain, the tenant's liability for rent is EXTINGUISHED because both the leasehold and reversion have merged. The lessee is entitled to COMPENSATION.
However, if the taking is TEMPORARY or PARTIAL, the tenant is NOT discharged from the rent obligation, but is entitled to compensation for the taking.
51
Tenant's Duties: Ameliorative Waste - Exception
A tenant is permitted to make changes that enhance the value if he is LONG TERM and they are REASONABLE because they reflect changes in the neighborhood.
52
Landlord's Duties: Duty to Deliver Possession
The MAJORITY rule requires that the landlord put the tenant in ACTUAL PHYSICAL POSSESSION of the premises at the beginning of the leasehold term.
53
Landlord's Duties: Implied Covenant of Quiet Enjoyment + Breach
Implied in EVERY residential and commercial lease, this covenant provides that a tenant has a RIGHT TO QUIET USE AND ENJOYMENT of the premises, WITHOUT INTERFERENCE from the landlord or a paramount title holder. Breached by wrongful or constructive eviction.
54
Landlord's Duties: Implied Covenant of Quiet Enjoyment - Breach by Wrongful Eviction - Actual Eviction
Actual eviction occurs when the landlord, a paramount title holder, or a hold-over tenant EXCLUDES the tenant from the ENTIRE leased premises. Here, tenant's obligation to pay rent is terminated.
55
Landlord's Duties: Implied Covenant of Quiet Enjoyment - Breach by Wrongful Eviction - Partial Eviction
Partial eviction occurs when the tenant is physically excluded from PART of the leased premises. Tenant is excused for paying rent of the ENTIRE premises, even though the tenant is in possession of the remainder.
56
Landlord's Duties: Implied Covenant of Quiet Enjoyment - Breach by Constructive Eviction and Elements
Constructive eviction occurs when the landlord's breach of duty renders the premises UNSUITABLE FOR OCCUPANCY. A tenant who has been constructively evicted MAY TERMINATE the lease and seek DAMAGES.
Elements of constructive eviction are as follows (SING):
1) Substantial Interference (chronic/permanent problem),
2) Notice (T must notify L of the problem, and L must fail to fix it), and
3) Goodbye (T must vacate).
57
Landlord's Duties: Implied Covenant of Quiet Enjoyment - Acts of Other Tenants
Generally, a landlord IS NOT liable to a tenant for the acts of other tenants. HOWEVER, two exceptions exist: (i) a landlord has a duty to ABATE A NUISANCE on site, and (ii) COMMON AREAS.
58
Landlord's Duties: Implied Warranty of Habitability
The implied warranty of habitability provides that for RESIDENTIAL LEASES, the premises MUST be fit for basic human habitation, the standard set by case law and local housing code (e.g., no heat in the winter, no water).
59
Landlord's Duties: Implied Warranty of Habitability - Breach by Landlord
If breached by the landlord, tenant has the option to (MR3): (i) Move, (ii) Repair and deduct from future rent, (iii) Reduce rent or withhold rent until court determines fair value, and (iv) Remain in possession, pay rent, and seek money damages.
60
Landlord's Duties: Retaliatory Evictions
A landlord may not terminate a lease or otherwise penalize a tenant in retaliation for the tenant's exercise of their legal rights.
61
Landlord's Duties: Anti-Discriminatory Legislation - Civil Rights Act
The Civil Rights Act prohibits racial and ethnic discrimination in the sale or rental of all property.
62
Landlord's Duties: Anti-Discriminatory Legislation - Fair Housing Act
The Fair Housing Act protects tenants and potential tenants from discrimination based on race, color, religion, national origin, and familial status.
63
Landlord's Duties: Anti-Discriminatory Legislation - Fair Housing Act - Exemptions
The Fair Housing Act does not apply to: (i) owner-occupied buildings with four or fewer units in which persons live independently of each other, and (ii) single-family homes sold or rented by an owner who owns no more than three single-family homes.
64
Landlord's Duties: Anti-Discriminatory Legislation - Fair Housing Act - Discriminatory Advertising
It is unlawful under the FHA to make any advertisements that indicate any preference based on race, color, religion, sex or national origin.
65
Landlord's Duties: Anti-Discriminatory Legislation - Fair Housing Act - Reasonable Accomodations
Landlords must permit disabled tenants to make reasonable modifications to existing premises to accommodate their disabilities.
66
Landlord's Duties: Anti-Discriminatory Legislation - Fair Housing Act - Prohibited Actions
1) Refusing to negotiate, rent, or sell housing/give mortgage,
2) providing different terms for sale/rental,
3) falsely representing dwelling unavailable
67
Transfers of Leaseholds: Assignment v. Sublease
Assignment - A transfer of the ENTIRE leasehold interest (remaining lease term)
Sublease - A transfer of PART of the remaining term)
68
Transfers of Leaseholds: Prohibition of Assignments or Subleases
A landlord can prohibit a tenant from assigning or subletting without the landlord's PRIOR WRITTEN APPROVAL. However, once the landlord consents to one transfer by a tenant, the landlord waives the right to object to future transfers by that tenant, UNLESS the landlord expressly reserves the right.
69
Transfers of Leaseholds: Assignment - Privity with Landlord
The assignee and landlord are in PRIVITY OF ESTATE, and each is liable to the other on ALL COVENANTS in the lease that "RUN WITH THE LAND." The original tenant is NO LONGER in privity of estate with the landlord, but is in PRIVITY OF CONTRACT, meaning their lease contract remains in effect and enforceable.
70
Transfers of Leaseholds: Assignment - Breach of Lease (Landlord's Rights)
Landlord can sue the assignee (privity of estate) AND original tenant (privity of contract). If the assignee reassigns their leasehold interest, their privity of estate ends and they have no liability for the subsequent assignee's failure to pay rent.
71
Transfers of Leaseholds: Sublease
A sublessee is the tenant of the original lessee and usually pays rent to the original lessee, not the landlord. Therefore, the sublessee is NOT in privity of contract nor estate with the landlord. Thus, a sublessee is NOT personally liable to the landlord UNLESS the covenants are expressly assumed in the sublease.
72
Transfers of Leaseholds: Sublease - Breach of Lease (Landlord's Rights)
Landlord may terminate the main lease for nonpayment of rent or breach of other covenants, and the sublease automatically terminates.
73
Transfers of Leaseholds: Sublease - Rights of Sublessee
A sublessee cannot enforce any covenants made by the landlord in the main lease, except a residential sublessee may be able to enforce the IMPLIED WARRANTY OF HABITABILITY against the landlord
74
Transfers of Leaseholds: Covenants Against Assignment or Sublease
Landlord MAY prohibit assignments or subleases WITHOUT PRIOR WRITTEN APPROVAL. A valid covenant against assignment is considered waived if the landlord was aware of the assignment and did not object.
Once the landlord consents to the transfer of one tenant, they may not prohibit future transfers, UNLESS they expressly reserve their right.
75
Transfers of Leaseholds: Assignment by Landlord
A landlord may assign the rents and reversion interest WITHOUT tenant's consent.
76
Transfers of Leaseholds: Assignment by Landlord - Rights of Landlord Assignee Against Tenants (Attornment)
Once tenants are given reasonable notice of the assignment, they must recognize and pay rent to the new owner as their landlord. The BENEFITS and BURDENS of all tenant covenants that TOUCH AND CONCERN the land runs with the landlord's estate to the new owner.
77
Landlord's Tort Liability: Caveat Lessee + Exceptions
The common law norm is that a landlord was under NO DUTY to make the premises safe, UNLESS (CLAPS):
1) Common areas,
2) Latent defects (must warn T until tenant accepts after disclosure; only duty to warn, not repair),
3) Assumption of repairs (if repairs are made negligently),
4) Public use rule (e.g., museum or convention hall), and
5) Short-term lease of furnished dwelling (e.g., Lewes Cottage Airbnb).
78
Landlord's Tort Liability: Modern Trend
Now, a landlord owes a general duty of REASONABLE CARE toward residential tenants and will be held LIABLE FOR ORDINARY NEGLIGENCE if the landlord had NOTICE of a defect and an OPPORTUNITY to repair it.
79
Landlord's Tort Liability: Modern Trend - Defects Arising After Tenant Takes Possession
A landlord IS NOT LIABLE in tort for defects arising AFTER tenant takes possession UNLESS the landlord knew or should have known of them.
80
Landlord's Tort Liability: Modern Trend - Legal Duty to Repair
If the landlord has a statutory duty to repair (e.g., housing codes), the landlord is liable for injuries resulting from failure to repair or negligent repairs.
81
Landlord's Tort Liability: Modern Trend - Security
Landlords may be liable in tort for injuries caused by criminal conduct of third parties where the landlord FAILED TO COMPLY with housing code provisions dealing with security.
82
Tenant's Tort Liability: Fixtures
A fixture affixed to land that has ceased being personal property PASSES WITH THE OWNERSHIP OF THE LAND and must stay put.
83
Tenant's Tort Liability: When a Chattel Becomes a Fixture
When either: (i) items are incorporated into the realty that they lose their identity or (ii) when its removal would cause considerable damage to the premises, the chattel becomes a fixture and must stay put.
84
Tenant's Tort Liability: Divided Ownership - Accession
When a tenant installs a chattel to real estate, courts will FIRST look toward an agreement between the landlord and tenant to determine if the chattel is a fixture. SECOND, a tenant is deemed to lack the intent to permanently improve the property, and thus may remove his chattel AT THE END OF THE LEASE TERM
85
Easements
A grant of NONPOSSESSORY interest that entitles its holder to some form of use or enjoyment of another's land, presumed to be of perpetual duration unless specifically limited.
86
Types of Easements
1) Affirmative Easements - the right to go onto or do something on servient land.
2) Negative Easements - Entitles its holder to EXPRESSLY PREVENT the servient landowner from doing something, typically only for the following categories (LASS): Light, Air, Support, stream water from an artificial flow.
87
Easements: Appurtenant
An easement appurtenant is when it benefits its holder in his physical use or enjoyment of land, made up of a DOMINANT estate (derives the benefit) and a SERVIENT estate (bears the burden).
88
Easements: In Gross
Confers upon its HOLDER ONLY some personal or pecuniary advantage not related to use or enjoyment of THEIR LAND.
89
Easements: Transferability - Easement Appurtenant
Passes AUTOMATICALLY with transfers of the dominant tenement, regardless of whether it is even mentioned in the conveyance. The burden also passes automatically UNLESS the new owner is a BONA FIDE PURCHASER WIHTOUT NOTICE of the easement.
90
Easements: Transferability - Easement in Gross
NOT TRANSFERABLE unless it is for commercial purposes.
91
Easements: Creation
The basic methods of creating an easement (PING):
1) Prescription,
2) Implied,
3) Necessity, and
4) Grant
92
Easements: Creation - Grant
An easement expressly conveyed per the statute of frauds (in writing signed by the person to be held against it)
93
Easements: Creation - Implication
Created by operation of law as an exception of the SOF, such as: (i) easement implied from preexisting use, (ii) easement implied without any existing use (common plan or scheme/profit a prendre - implied easement to pass over the surface of land to extract minerals or some product)
94
Easements: Creation - Necessity
Implied when a landowner conveys a portion of her land with no way out except over some part of the grantor's land.
95
Easements: Creation - Prescription
Analog to adverse possession, the following is required (COAH): continuous, open and notorious, actual use, and hostile
Generally, NOT available for public land.
96
Easements: Reserving an Easement's Use for Third Party
Under majority view, an easement can ONLY be reserved for the grantor's use, an attempt to reserve an easement for anyone else is VOID.
97
Easements: Remedy Against Misuse of Easement
Misuse DOES NOT terminate the easement, rather the appropriate remedy is an INJUNCTION against the misuse.
98
Easements: Use of Servient Estate + Repairs
The servient owner may generally use the land in any way he wishes that does NOT INTERFERE with the easement. The easement holder has the duty to make repairs to the easement if she is the sole user, but if the servient owner also uses, repair costs will be apportioned.
99
Easements: Ways to Terminate
The following are ways to end an easement (END CRAMP): 1) Estoppel, 2) Necessity, 3) Destruction, 4) Condemnation, 5) Release, 6) Abandonment, 7) Merger, and 8) Prescription.
100
Easements: Termination - Estoppel
If an oral expression is made to abandon the easement and the servient owner MATERIALLY CHANGES THEIR POSITION in reasonable reliance of that, the easement terminates through estoppel.
101
Easements: Termination - Necessity
An easement created by necessity will expire AS SOON AS the necessity ends, UNLESS reduced to an express grant.
102
Easements: Termination - Abandonment
An easement holder may terminate the easement by abandonment by showing intent through PHYSICAL ACTION to never use the easement again.
103
Easements: Termination - Merger
An easement is extinguished when title to the easement and title to the servient land becomes vested in the same person.
104
License
A privilege to enter another's land for some delineated purpose. Unlike an easement, this is NOT an interest in land, but a REVOCABLE PRIVILEGE that is inalienable.
105
License: Writing
No writing is required to create a license since it is not a property interest.
106
License: Revocation
Licenses are REVOCABLE at the will of the licensor, UNLESS estoppel applies to bar revocation, such as in: (1) ticket cases, and (2) neighbors talking by the fence.
107
Right to Profit
The profit entitles its holder to enter the servient land and take its resources, and all rules governing easements are the same for profits.
108
Right to Profit: Extinguish (Surcharge)
A right to profit MAY be extinguished by surcharge, which is a misuse that overly burdens the servient estate.
109
Restrictive Covenants
A written promise to do or not do so something related to land, usually found in deeds. Different from easement because it DOES NOT GRANT property interest, but restricts or requires an action on another's land.
110
Restrictive or Negative Covenants
A promise to REFRAIN from doing something related to land (e.g., no pets in apartment).
111
Affirmative Covenants
A promise to do something related to land (e.g., promise to maintain fence).
112
Equitable Servitude v. Covenant
Difference is the BASIS OF THE REMEDY PLAINTIFF SEEKS. For money damages, construe COVENANT, in contrast for injunctions, construe EQUITABLE SERVITUDE.
113
Covenant: Running with the Land - Burdened Side
For a covenant to pass with the BURDENED PROPERTY, it must RUN WITH THE LAND. That means the following must be present (WITHN): 1) Writing, 2) Intent (that the covenant would run), 3) Touch and Concern, 4) Horizontal )succession of estate, e.g., landlord/tenant, grantor/grantee) AND Vertical privity (non-hostile, such as contract, devise, or descent, NOT adverse possession) and 5) Notice (actual, inquiry, or record notice).
114
Covenant: Running with the Land - Benefit Side
For a covenant to pass with the BENEFITED SIDE, it must RUN WITH THE LAND. That means the following must be present (WITV): 1) Writing, 2) Intent (that the covenant would run), 3) Touch and Concern, 4) Vertical Privity.
115
Covenant: Running with the Land - Remedies
A breach of a real covenant is generally remedied by an award of money damages, collectible from the defendant's general assets. If an injunction is sought, the promise may be enforced as an equitable servitude.
116
Equitable Servitudes
A 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 a BONA FIDE PURCHASER.
117
Equitable Servitudes: Creation
As with real covenants, equitable servitudes are created by PROMISES contained in WRITING that satisfies the SOF. The following must be present (WITNES): 1) writing, 2) intent, 3) touch and concern the land, 4) notice, and 5) equitable servitude
In contrast to covenants, NO PRIVITY IN ESTATE is required for equitable servitudes.
118
Equitable Servitudes: Implied Equitable Servitudes (Common Scheme Doctrine)
The court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the promise. The elements are: (1) a general scheme of residential development, and (2) defendant lot-holder had NOTICE of the promise
119
Equitable Servitudes: Implied Equitable Servitudes (Common Scheme Doctrine) - Notice
Three forms of notice are available (AIR):
1) Actual - defendant had literal knowledge,
2) Inquiry - neighborhood seems to conform to the restriction, and
3) Record - publicly recorded document.
120
Equitable Servitudes: Equitable Defenses
A court will NOT enforce an equitable servitude if: (i) the neighborhood CONDITIONS HAVE CHANGED, (ii) unclean hands, (iii) a benefited party ACQUIESCED in a violation of the servitude by a burdened party; (iv) estoppel, (v) laches.
121
Adverse Possession
Possession of land for a statutorily prescribed time can ripen into real estate property if certain elements are met.
122
Adverse Possession: Elements
The following elements are required to establish adverse possession (COAH): 1) continuous, 2) open and notorious, 3) actual and exclusive, and 4) hostile.
123
Adverse Possession: Claim of Right
A possessor enters a claim of right when they reasonably believe that the property belongs to them - usually because of an invalid deed. This can count as the "hostile" element.
124
Adverse Possession: Tacking
One adverse possessor may tack on to his time with the land his predecessor's time IF there is PRIVITY between the possessors (any non-hostile nexus).
125
Adverse Possession: Disabilities
The running of time will NOT RUN against a true owner who is afflicted by a disability AT THE INCEPTION of the adverse possession.
126
Adverse Possession: Future Interests
The statute of limitations DOES NOT RUN against a holder of a future interest UNTIL the interest becomes POSSESSORY.
127
Adverse Possession: Effect of Covenant in True Owner's Deed
If an adverse possessor uses the land in violation of a restriction in the owner's deed, they take free of the restriction. HOWEVER, if the possessor's use complies with the restriction, they take subject to the restriction.
128
Adverse Possession: Land That Cannot Be Adversely Possessed
Title to government-owned land and land registered to a Torrens system CANNOT be acquired by adverse possession.
129
Land Sale Contracts: Statute of Frauds Requirement
Because the real estate contract involves the sale of land, the statute of frauds must be satisfied, meaning the contract must be IN WRITING, SIGNED by the party whom enforcement is sought, AND the writing must: (i) IDENTIFY THE PARTIES, (ii) DESCRIBE THE PROPERTY, and (iii) include the PRICE or means of determining price.
130
Land Sale Contracts: Effect of Inaccurate Description
Buyer is entitled to specific performance with a pro rate deduction in price.
131
Land Sale Contracts: Doctrine of Part Performance
This doctrine is an EXCEPTION to the statute of frauds, it provides that a buyer may enforce an oral real estate contract BY SPECIFIC PERFORMANCE if at least two of the following events have occurred: (i) buyer has taken POSSESSION, (ii) buyer has PAID THE PURCHASE PRICE or a significant portion, and (iii) buyer has made SUBSTANTIAL IMPROVEMENTS to the premises.
132
Land Sale Contracts: Doctrine of Equitable Conversion
Once the land sale contract is signed, the contract CONVEYS EQUITABLE TITLE TO THE BUYER. At closing, the deed conveys LEGAL TITLE to the buyer.
133
Land Sale Contracts: Doctrine of Equitable Conversion - Risk of Loss
As the equitable title holder, the buyer bears the risk of loss if the property is destroyed after the land sale contract is signed. However, the seller must credit any fire or casualty insurance proceeds they receive against the purchase price.
134
Land Sale Contracts: Doctrine of Equitable Conversion - Passage of Title on Death
If one party dies after the contract but before the closing, their interest passes to their estate (i.e., seller dies, family gets purchase price/buyer dies, family gets house).
135
Land Sale Contracts: Implied Promises in Every Land Sale Contract - Marketable Title
Every contract contains an implied covenant that seller will PROVIDE MARKETABLE TITLE at closing, meaning REASONABLY FREE FROM DOUBT and THREAT OF LITIGATION.
Common defects are: defect in record chain of title (e.g., adverse possession), encumbrances, existing zoning violations
136
Land Sale Contracts: Marketable Title - When Must Title Be Marketable
Seller has UNTIL THE DAY OF CLOSING to render the title marketable.
137
Land Sale Contracts: Marketable Title - Remedy if Not Marketable
The buyer must NOTIFY the seller if title is unmarketable and give the seller reasonable time to cure the defects. If not cured, the buyer may seek RESCISSION, DAMAGES, SPECIFIC PERFORMANCE WITH ABATEMENT, and a QUIET TITLE SUIT.
HOWEVER, if the contract and deed merge, the seller's liability on the implied contractual covenant ends.
138
Land Sale Contracts: Implied Promises in Every Land Sale Contract - Seller Will Not Make False Statements of Material Fact
The seller may be liable to purchaser if they KNOWINGLY MADE FALSE STATEMENTS OF MATERIAL FACT that the buyer RELIED ON, ACTIVELY CONCEALED a defect, or FAILED TO DISCLOSE known defects.
139
Land Sale Contracts: Implied Promises in Every Land Sale Contract - Failure to Disclose Elements
The seller liable for failure to disclose LATENT MATERIAL DEFEFCTS if the following elements are present: (i) the seller must KNOW or HAVE REASON TO KNOW of the defect; (ii) the seller must realize that the buyer is UNLIKELY TO DISCOVER the defect; and (iii) the defect must be SERIOUS ENOUGH that the buyer would PROBABLY RECONSIDER the purchase.
140
Land Sale Contracts: Implied Promises in Every Land Sale Contract - Disclaimers
Specific types of disclaimers are likely permissible (e.g., "seller is not liable for any defects in the roof"). However, general disclaimers ARE NOT GOOD.
141
Land Sale Contracts: Implied Warranties of Fitness or Habitability (Caveat Emptor)
There is NO implied warranties of fitness or habitability. Caveat emptor is the COMMON LAW NORM, meaning the buyer alone is responsible for checking the quality of the home.
142
Land Sale Contracts: Caveat Emptor Exception
Most courts will recognize a warranty of fitness or quality in the SALE OF A NEW HOME BY THE BUILDER.
143
Land Sale Contracts: Time of Performance
Unless explicitly stated, time is NOT "of the essence" in real estate contracts, and therefore a party an tender performance within a REASONABLE TIME after the closing date.
144
Land Sale Contracts: Remedies for Breach of Sales Contract
The nonbreaching party is entitled to DAMAGES (difference between contract price and market value on the date of breach, plus incidental costs), or SPECIFIC PERFORMANCE, because land is unique.
145
Closing: Requirements to Pass Legal Title from Grantor to Grantee
To pass legal title from grantor to grantee, the deed must be (LEAD): Lawfully Executed And Delivered.
146
Closing: Lawful Execution Requirements
Executing a valid deed requires the following: (1) a WRITING SIGNED BY GRANTOR, (2) an UNAMBIGUOUS DESCRIPTION OF LAND, (3) IDENTIFICATION OF THE PARTIES by name or description, (4) WORD OF INTENT TO TRANSFER (e.g., "grant")
No consideration is NEEDED to make a deed valid.
147
Closing: Delivery Requirement
The delivery requirement could be satisfied when the grantor PHYSICALLY or MANUALLY transfers the deed to the grantee (mail or agent is permissible).
This does not require actual physical transfer, all that is required is A LEGAL STANDARD, tested solely by PRESENT INTENT.
148
Closing: Acceptance and Rejection
Acceptance is PRESUMED. If a grantee expressly rejects the deed, the deed is ineffective to pass title.
149
Closing: Transfer to Third Party with Conditions (Written v. Oral)
Grantor may deliver an executed deed to a third party (i.e. escrow agent), with delivery instructions. If the escrow agent is given WRITTEN instructions, the grantor is bound by the delivery to the agent. BUT, if the grantor gives ORAL instructions to the escrow agent, the grantor MAY CHANGE THE INSTRUCTIONS AND RECALL THE DEED while its still in the agents hands, UNLESS there is a written contract of sale.
150
Closing: Quitclaim Deed
This deed conveys only what the grantor has at the time of conveyance, NO COVENANTS.
151
Closing: General Warranty Deed
This deed WARRANTS AGAINST ALL DEFECTS in title, including those attributable to grantor's predecessors. It contains ALL SIX of the following covenants:
(first three are PRESENT COVENANTS, begins AT DELIVERY)
1) The covenant of SEISIN (grantor owns estate),
2) The covenant of the RIGHT TO CONVEY, and
3) The covenant AGAINST ENCUMBRANCES
(second three are FUTURE COVENANTS, not breached until grantee is IN POSSESSION)
4) The covenant of QUIET ENJOYMENT,
5) The covenant of WARRANTY, and
6) The covenant of FURTHER ASSURANCES
152
Closing: Special Warranty Deed
This deed contains the same covenants as the general warranty deed, but ONLY ON BEHALF OF THE GRANTOR (not previous owners)
153
Closing: Damages and Remote Grantees
Present covenants cannot be enforced by remote grantees (grantees up the line of conveyance), BUT future covenants run with the grantee's estate. If there are successive conveyances by general warranty deed, the last grantee may sue ANY previous seller to recover damages.
154
Closing: Defective Deeds - Effect of a Void Deed
A void deed will be se aside by the court even if the property has passed to a bona fide purchaser.
155
Closing: Defective Deeds - Effect of a Voidable Deed
A voidable deed will be set aside ONLY IF the property HAS NOT passed to a BONA FIDE PURCHASER.
156
Closing: Defective Deeds - Fraudulent Conveyances
A deed MAY be set aside by the grantor's creditor's if it was made: (1) with ACTUAL INTENT to hinder, delay, or defraud any creditor of grantor, or (2) without receiving a reasonably equivalent value in exchange for the transfer, and debtor was insolvent. HOWEVER, the deed will not be set aside as against any grantee who took in good faith and paid reasonably equivalent value.
157
Conveyance of Deed by Gift and Will
A deed may validly convey real property by inter vivos gift if there is: (i) donative intent, (ii) delivery, and (iii) acceptance.
158
Conveyance of Deed by Gift and Will: Ademption
If a property is specifically devised in a will, but NOT OWNED by the testator, the GIFT FAILS. Ademption substitutes the gift with a PARTICULAR ITEM, not money.
159
Conveyance of Deed by Gift and Will: Ademption - Land Under Contract
The ademption doctrine DOES NOT apply to the proceeds of a contract for sale of land that was executory at the time of the testator's death.
160
Conveyance of Deed by Gift and Will: Exoneration
In COMMON LAW, the devisee of specific property is entitled to have the land "exonerated" by the payment of liens and mortgages from the testator's residuary estate.
161
Conveyance of Deed by Gift and Will: Abatement
IF the estates assets are not enough to pay all claims against the estate, the gifts are abated (reduced), usually in the following order: (1) property passing by intestacy, (2) the residuary estate, (3) general legacies, and, (4) specific devises and bequests.
162
Closing: Effect of Delivery with Oral Condition
If a deed is absolute on its face and transferred to the grantee with an oral condition, the CONDITION IS VOID and DELIVERY IS DONE. (oral condition drops out)
163
Recording: Bona Fide Purchasers
To be a bona fide purchaser, a grantee must: (i) be a PURCHASER (or mortgage lender), NOT one who receives property by gift, will, or inheritance, (ii) pay VALUABLE CONSIDERATION, and (iii) take WITHOUT NOTICE of the prior conveyance.
If the subsequent grantee does not qualify as a BFP, they ARE NOT PROTECTED y the recording act and the common law rule of first in time applies.
164
The Recording Act: Common Law
First in time, first in right, meaning whoever received interest first was entitled to the property.
165
Recording: Types of Notice
AIR: (1) Actual, (2) Inquiry, and (3) Record.
166
Recording Acts: Race Statute
Under a pure race statute, notice of a prior conveyance by the grantor DOESN'T MATTER, first party to record wins.
Ex: "A conveyance of an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is FIRST RECORDED." (FIRST only)
167
Recording Acts: Notice Statute
Under a notice statute, a subsequent purchaser who had NO NOTICE of a prior conveyance by the grantor will prevail over a prior grantee who FAILED TO RECORD.
Ex: "A conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, WITHOUT NOTICE thereof, unless the conveyance is recorded." (NOTICE only)
168
Recording Acts: Race-Notice Statute
To be protected under a race-notice statute, the subsequent purchaser MUST NOT HAVE ANY NOTICE of the prior grant AND must record first.
Ex: "Any conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, WITHOUT NOTICE thereof, whose conveyance is FIRST RECORDED." (NOTICE and FIRST)
169
Recording: The Shelter Rule
Anyone who takes from a BFP will PREVAIL AGAINST ANY INTEREST the BFP would have prevailed against, EVEN IF the grantee had actual notice of a prior unrecorded conveyance.
170
Recording: Wild Deed Rule
A wild deed that has a grantor unconnected to the chain of title, the deed is wild and is INCAPABLE OF GIVING RECORD NOTICE OF ITS EXISTENCE.
171
Recording: Estoppel Deed
One who conveys realty in which he has no interest is ESTOPPED from denying the validity of that conveyance if he subsequently acquires the title that he had previously purported to transfer.
172
Recording: Deeds Recorded Late
A deed recorded AFTER the grantor parts with title through a subsequent deed is NOT CONSTRUCTIVE NOTICE in most states (but is in race-notice jurisdictions).
173
Recording: Judgment Creditors
Unlike mortgage lenders, who are the same as any other BFP, judgment creditors and lienors AREN'T USUALLY protected by the recording acts, therefore their notice or lack of notice of prior claims is irrelevant.
174
Mortgage: Documents
1) Promissory Note - the mortgagor's (borrower) personal obligation,
2) Mortgage - the agreement that says if the mortgagor quits paying, the land can be sold to pay the mortgagee (lender).
175
Mortgage: Purchase Money Mortgage
An extension of value by a lender who takes as collateral a security interest in the real estate its loan enables the debtor to acquire.
176
Mortgage: Creation
A mortgage is a creation of two elements: (i) a debt, and (ii) a voluntary transfer of a lien in the debtor's land to secure the debt.
177
Mortgage: Transfer by Mortgagee
A mortgagee (lender) may transfer their interest by: (i) indorsing the note and delivering it to the transferee, OR, (ii) executing a separate document of assignment
178
Mortgage: Transfer by Mortgagor (Assumption v. Subject To)
When a mortgagor transfers the property, the buyer either ASSUMES the mortgage or TAKES the property subject to the mortgage.
Assumes - buyer is agreeing to be PERSONALLY LIABLE on the mortgage note.
Subject To - NOT agreeing to be personally liable, thus the mortgagee's only recourse is foreclosure (no right against grantee).
179
Mortgage: Due On Sale Clauses
Allows the lender to demand full payment of the loan if the mortgagor transfers any interest in the property without the lender's consent.
180
Mortgage: Effect on Recording Acts
All recording statutes apply to mortgages as well as deeds. Thus, a subsequent buyer takes subject to a properly recorded lien.
181
Foreclosure: Sale Proceeds Exceed Amount Owed
Junior liens are paid off IN FULL in order of priority.
182
Foreclosure: Sale Proceeds Are Less Than Amount Owed
Mortgage brings a deficiency action against debtor.
183
Foreclosure: Senior Interests
Foreclosure DOES NOT AFFECT any senior interests, the buyer at the sale will take subject to such interests.
184
Subordination Agreements
A senior creditor may agree to subordinate its priority to a junior creditor by PRIVATE AGREEMENT.
185
Priority of Purchase Money Mortgage
FIRST PRIORITY in parcel financed property, despite recordation AFTER properly recorded mortgage.
186
Equitable Redemption
Equitable redemption is recognized UP TO THE DATE OF SALE. At ANY TIME PRIOR to foreclosure sale, the debtor has the right to redeem the land by freeing it of the mortgage.
187
Equitable Redemption
Equitable redemption is recognized UP TO THE DATE OF SALE. At ANY TIME PRIOR to foreclosure sale, the debtor has the right to redeem the land by freeing it of the mortgage. Once the foreclosure sale takes place, this right cuts off. This right MAY NOT BE WAIVED.
188
Mortgage Alternatives: Deed of Trust
Similar to a mortgage, where debtor is the trustor and gives the deed of trust to a third party trustee (beneficiary). On default the lender instructs the trustee to foreclose the deed of trust by sale.
189
Mortgage Alternatives: Installment Land Contract
An installment purchaser only obtains legal title when the FULL CONTRACT PRICE has been paid. Forfeiture clauses allowing vendor to retain money paid and retake are GENERALLY UNENFORCEABLE.
190
Mortgage Alternatives: Lease Back
A landowner may sell her property for cash, then lease it back from the purchaser for a long-period of time. Treated as a disguised mortgage.
191
Mortgage: Writing
The mortgage must be in WRITING to satisfy the SOF.
192
Foreclosure: Who Are Considered Necessary Parties to the Foreclosure Action?
ALL JUNIOR LIEN HOLDERS and debtor.
193
Zoning: Nonconforming Use
A lawful use that became nonconforming due to a change in zoning laws.
194
Zoning: Nonconforming Use - Changes
A nonconforming use cannot be extended or intensified in ways that constitute a substantial change, but INSUBSTANTIAL CHANGES ARE PERMITTED.
195
Zoning: Cumulative Zoning Ordinance
A cumulative zoning ordinance creates a hierarchy of uses of land, where a higher intensity land use zone can permits the lower intensity uses.
196
Zoning: Noncumulative Zoning Ordinance
Land may be used ONLY for the purpose for which it is zoned.
197
Zoning: Special Use Permits
A permit that must be obtained even though zoning is proper for the intended use.
198
Zoning: Variances
Two types, area and use. Must show UNDUE HARDSHIP and NO DIMINUTION to neighboring property values.
199
Condominiums Rights
For condominiums, each owner owns the interior of their individual unit PLUS an undivided interest in the exterior and common elements. Therefore, the ordinary rules against restraints on alienation apply. Owners are considered tenants in common with other tenants for the common areas.
200
Cooperatives
In a cooperative, title to land and buildings are held by a corporation that leases individual apartments to its shareholders. Because the owners are regarded as tenants, a direct restraint on alienation of an individual interest is valid.
201
Homeowner's Association
Oversees common elements, and the board enforces covenants, conditions, and restrictions
202
Rights Incidental To Ownership of Land: Lateral Support
Ownership of land includes the right to have the land supported in its NATURAL STATE by adjoining land.
203
Rights Incidental To Ownership of Land: Lateral Support - Support of Land Liability
A landowner is STRICTLY LIABLE if their excavation causes adjacent land to subside.
204
Rights Incidental To Ownership of Land: Lateral Support - Support of Land with Buildings Liability
If land is improved by buildings and an adjacent landowner's excavation causes that improved land to subside, the excavator will be liable ONLY IF NEGLIGENT. HOWEVER, the adjacent landowner may be STRICTLY LIABLE if the plaintiff shows that, because of the defendant's actions, the plaintiff's improved land would have collapsed even in its natural state (must show improvement on plaintiff's land DID NOT CONTRIBUTE to the collapse).
205
Rights Incidental To Ownership of Land: Subjacent Support
An underground occupant of land (e.g., mining company) MUST support the surface and buildings existing on the date the subjacent estate was created. Liability for subsequently erected buildings require NEGLIGENCE.
206
Water Rights: The Riparian Doctrine
Water belongs to those who own the land bordering the watercourse, and riparian owners can use water ONLY in connection with the riparian parcel.
207
Water Rights: The Riparian Doctrine - Natural Flow Theory
A riparian owner's use in enjoinable if it results in SUBSTANTIAL or MATERIAL DIMINUTION of the water's quantity, quality, or velocity.
208
Water Rights: The Riparian Doctrine - Reasonable Use Theory
(MOST COMMON) All riparians share the right of "reasonable use" of the water. To determine reasonableness, courts will balance the use against the harm.
209
Water Rights: The Riparian Doctrine - Natural v. Artificial Use
Under either theory, natural uses (e.g., human uses) prevail over artificial uses (e.g., manufacturing)
210
Water Rights: Prior Appropriation Doctrine
The water initially belongs to the state, BUT the right to divert it and use it can be acquired by an individual through their actual use, regardless of whether or not they happen to be a riparian owner.
211
Groundwater: Absolute Ownership Doctrine
(Minority) The owner of overlying land can take all the water they wish, for any purpose, including export.
212
Groundwater: Reasonable Use Doctrine
The owner of overlying land can take all the water they wish, for any purpose, but exporting is allowed ONLY IF it does not harm the other owners with rights to the same aquifer.
213
Groundwater: Correlative Rights Doctrine
Owners of overlying land own the underground water basin as joint tenants, each is allowed a REASONABLE AMOUNT of use.
214
Groundwater: Appropriative Rights Doctrine
Priority of use is determinative.
215
Groundwater: Restatement Approach
A surface owner may pump groundwater UNLESS it: (1) UNREASONABLY HARMS neighboring landowners, (2) EXCEEDS the pumper's reasonable share, or (3) DIRECTLY or SUBSTANTIALLY affects surface waters and unreasonably harms surface water users.
216
Surface Water
Water that passes over land without a channel (e.g., rain, melting snows, etc.), a landowner can use surface water WITHIN their boundaries for ANY PURPOSE.
217
Surface Water: Natural Flow Theory
Owners CANNOT ALTER natural drainage patterns.
218
Surface Water: Common Enemy Theory
An owner can take ANY PROTECTIVE MEASURE to get rid of the water or combat its flow.
219
Surface Water: Reasonable Use Theory
Balances utility of the use against the gravity of the harm.
220
Airspace Rights: Right to Exclude + Remedies
The possessor of real property has the right to exclude others, remedies for invasion include actions for: (i) trespass, (ii) private nuisance, (iii) continuing trespass, and (iv) ejectment or unlawful detainer.
