Rule Statements Flashcards
Lost Property
When a person loses property, it goes to the finder.
Mislaid Property
When a person mislays property and forgets to return for it, it typically goes to the locust owner until the TO returns to claim it.
Abandon Property
TO intends to relinquish the property and does some act to demonstrate her intent to abandon the property.
Gift (Inter Vivos)
Includes (1) Intent to immediately transfer ownership of the property, and; (2) delivers the property actually, constructively or symbolically, and; (3) the recipient accepts the gift (acceptance is presumed unless the recipient demonstrates intent not to)
Gift (Causa Mortis)
Intent, delivery, acceptance, & a subjective belief that death is imminent + an objective threat related to the subjective belief.
Adverse Possession
For a claim if AP to be met a party must actually enter the land, use it open and notoriously, exclusively, hostile, and continuous for the statutory period.
Tenancy in Common
default tenancy, where Ts own fractional shares of property but have a right to posses the whole. May be subject to unilateral partition.
Joint Tenancy
The owners hold as one and take at the same Time, with the same Interest and Title, and a right to posses the whole. The magic words creating a Joint Tenancy are “right of survivorship”
Lien Theory
the majority rule that a lien on a tenants share in a joint tenancy does not sever the joint tenancy relationship.
Title theory
The minority rule that the joint tenancy is severed if title to the property is conveyed.
Tenancy by the Entirety
Strictly limited to marital property. includes the same unities has joint tenancy (time, title, interest, possession) plus a person, i.e. the spouse and is not subject to unilateral partition.
Partition by Sale
Occurs when two conditions are present, (1) the land is not capable of being divided proportionately with respect to the owner’s shares, and (2) if it would better promote the interest of the owners.
Partition in Kind
Actual division of land proportionate to the owners interest. This method is most preferred by courts because courts don’t like taking land away from people.
Rent in T. in Common
Generally a tenant in common is not liable to the other party in rent unless it was expressly agreed to or ouster has occurred.
Contribution
A tenant who has paid more than his fair share for mortgages, rent, etc… may seek contribution from other tenants in common.
Accounting
An equitable proceeding in which a tenant seeks to retain his share of rent or profits generated by the property.
Term of Years
Has s definite beginning an end and requires no notice to terminate because the tenancy will end when the term of years expires.
Periodic Tenancy
Lasts for an initial period of time and automatically continues until it is properly terminated. Proper termination is equal to the lease up to six months and may only terminate on the last day of the month. (month to month, year to year)
Tenancy at Will
Has no fixed time period and generally arises from implication. No notice is required to terminate by either party and L may not strong arm T if T decides to terminate. This is also the default courts use when they are unable to determine the relationship between L and T
Tenancy at Sufferance
Occurs when T stays in possession after the lease has expired. L has two options, he may evict the T or her may enter into a new relationship with the T.
Delivery of Possession (English)
This is the majority rule which states that the landlord has the responsibility to deliver actual possession of the premises on the first day of the tenancy because, by maintaining the property, he is in a better position to evict trespassers or Ts wrongfully still in possession.
Delivery of Possession (American)
This is the minority rule and states that the landlord only has a duty to deliver legal possession of the premises on the first day of the tenancy, i.e. key to access premises, and not actual delivery.
Fair Housing Law
it is unlawful to refuse to sell, rent, negotiate; discriminate in terms, conditions; advertise preference, limitation, discrimination; induce sale or rental by representation; coerce, threaten, intimidate, based on race, color, religion, sex, familial status, or national origin.
Ms. Murphy Exception
Fair Housing Law does not apply to a residence with four or fewer families where the owner is a resident too.
§ 1982 Civil Rights
Similar to fair housing but more narrow in that it inly applies to race and denying leases but is also broader in that there are no exceptions.
Assignment
is a conveyance of the entire lease time remaining on the property.
Sublease
is a conveyance of some right to the property but not the entire remaining time period. L and T1 will not have probity of E because T has the right to re-enter when the sublease expires.
3rd Party Beneficiary Relationship
arises when T1 either agrees to the head lease or agrees to pay L directly. Will result in privity of K between T1 and L.
Approval Clause
(Majority) rule is that L may unreasonably with hold consent for T to sublease or assign. (Minority) rule states that L may not unreasonably with hold consent unless he has a commercial justification.
Self Help
(Majority) rule is that L may use self-help as long as it is peaceable. (Modern Trend) is that L may not use self-help and must use judicial process to evict T. Policy–> is to prevent confrontations between L and T and
Abandoning T
L has to choices (1) L may accept surrender and end the tenancy. L may seek back rent and sue for damages which is the Rent term - FMV (L would only receive money if FMV was down); (2) L may refuse surrender but must use reasonable efforts to mitigate damages i.e. put the apt back in stock, advertise, show the apt.
Covenant of Quiet Enjoyment
is implied in every commercial and residential lease and assure T that the will not be disturbed by claims of superior title.
Breach of CQE
May result in constructive eviction or T can remain in possession and sue for damages.
Constructive Eviction
Results from substantial interference with T’s and enjoyment of the property. T must report any problems with the premises and allow a reasonable time for L to make repairs. T must move out in a timely manner.
Implied Warranty of Habitability
Implied in every residential lease and may not be waived. Property must be safe, clean and fit for human habitation. Applies to latent and patent defects.
Easement
is a non-possessory right to use someone else’s land.
Appurtenant Easement
Benefits the land or the owner’s use and enjoyment of the land. Involves a dominant and servant estate.
Easement In-Gross
Benefits a person and only involves a servant estate.
Dominant Estate
The estate that is benefited by the easement.
Servient Estate
The estate burdened by the easement.
Express Easement (Grant)
is created by a grant or sale of land.It must be done through proper forms of conveyance (id grantor/grantee, describe the land, be in writing, and signed by the grantor) majority rule is that you cannot reserve an easement for a 3rd party.
Easement by Prescription
AP elements with an exception to exclusive. Here, the easement must be exclusive to the TO and the Tenant and exclude the public at large.
Licenses
are a temporary authorization to use someone else’s land and are freely revocable. They are not in writing and are not expandable or alienable. (let your kid swim on my pond)
Easement by Implied Use
arises from a severance of land held in common ownership, with an existing, apparent and continuous use when severance occurs with a reasonable necessity for use when severance occurs
Easement by Necessity
Severance of title to land held in common, and strict necessity at the time of severance. (land-locked)
Assignment of Appurtenant Easement
Benefit of easement will be assigned to the new owner of the dominant estate.
Burden will be assigned to the new owner if he has notice of it.
Assignment of Easement In-Gross
Burden will transfer to new owner of servant estate if he has notice of it.
Benefit will transfer if it is not contrary to the intent of the owners.
Scope of an Easement
Reasonable expansion unless expressly limited, subdivision, yes unless there is an unreasonable burden..
Terminating an Easement
Common Ownership, Release, Time limit, Abandonment (intent to abandon + act to demonstrate intent), Prescription.
Real Covenant
generally the right to refrain from doing some thing on one’s land. the remedy is money damages.
Real Covenant Burden
WITHN: writing, intent, touch and concern, horizontal and vertical privity, and notice.
Real Covenant Benefit
WITV: Writing, intent, touch and concern, Vertical Privity (relaxed)
Equitable Servitude
Similar to real covenant except the remedy is an injunction.
Equitable Servitude Burden
WITN: writing, intent, touch and concern, notice
Equitable Servitude Benefit
WIT: writing, intent, notice.
General Warranty Deed
most protective deed that warrants against all defects (present and future) on the property, includes 6 covenants.
Present Covenants: seisin, right to convey, against encumbrances. (breached, if ever, at closing. AP will begin when breached)
Future Covenants: General Warranty, Quiet Enjoyment, and Further Assurances. (AP occurs when breach occurs)
