Terminology Flashcards
Adverse Possession
When a person comes in and possesses another’s land, uses it, and the land eventually becomes theirs. If an owner does not, within the statutory period, take action to eject a possessor who claims adversely to the owner, the title vests in the possessor.
Restrictions/Limitations:
* Minority – Must knowingly intend to claim title.
* Majority – Adversity must be objective, not subjective.
–Cannot adversely claim from the sovereign.
–Claim clock doesn’t start for minors, morons, and prisoners.
–Cannot adversely claim back from someone you sold to.
Requirements of Adverse Possession
ONECARS
Open – was the assertion of the claim visible?
Notorious – was there notice given, did people know?
Exclusive – did I exercise dominion?
Continuous – regular and interrupted
Adverse – needs to be adverse to someone’s interest
Right – was I acting like it was mine? did I pay taxes?
Statutory Period – state law
Tacking
Possession passes from one adverse possessor to another, as long as there is continuity among the parties…i.e. inheritance, spouses, partners, children, shared interest. Tacking is not permitted where one party has ousted another. Clock continues ticking even if property is sold by adverse possessor
Privity
A relationship between parties, conveyance from one party to another. The parties must have continuity of interest and can transfer interest, such as in tacking or covenants.
Vertical Privity
Refers to those who subsequently obtain property subject to the covenant
EX: Tenant 1 to tenant 2; first landlord to the person they sold the property who, thus, becomes the second landlord
Horizontal Privity
Tenant to Landlord
Seisin
A proof of deed (ownership) entailing
(1) possession and
(2) a claim of ownership
Easement
A non-possessory, non-exclusive, enforceable INTEREST in using the land of another (like ONECARS, but no E). An easement is ADVERSE (unlike a license), but can be used as a defense in a trespass action. However, an easement can be terminated by stated conditions, unity of ownership(same owner and servient estate longer in duration), release (both parties stated as per statute of frauds), abandonment (oral expression and long period of non-use the minimum), condemnation, prescription (adverse) possession. A necessary easement will cease when the necessity is gone.
Positive Prescription of Easements
The creation of a right through a lapse of time (ex…adverse possession)
Negative Prescription of Easements
The loss or destruction of a right by lapse in time (ex…statute of limitations)
Dominant Estate
The land for whose benefit the easement is created
Servient Estate
The land that is burdened, or used, by the easement
Estate
An interest in land that:
Is or may become possessory;
Is measured in terms of duration
Rent
Periodical compensation, in money or otherwise, agreed to be given to by the tenant to the landlord for the use of realty, the payment of which may be enforced like any other demand. In exchange for paying rent, the tenant is allowed:
1) Possession
2) Quiet Enjoyment
Quiet Enjoyment
The right to enjoy use or possession without interference
Constructive Eviction
The tenant’s use or enjoyment of property has been substantially impaired (as if the landlord threw them out). Tenant is not entitled to stop paying rent unless he abandons premises.
Duties of Tenant:
1) Lease is silent:
a) Pay rent
b) Tenant responsibility for the condition of the property. Not to commit waste.
2) Lease Covenant by the tenant to repair:
a) Tenants are liable to everything if someone burns the house down. Tenants insurer of the property. EXCEPTION: ordinary wear and tear.
Landlord Remedies:
1) Tenant does not pay
a) Can sue originally for rent in arrears.
b) Now can sue for both past and future rent.
2) Abandons leasehold
a) Can treat it as an offer of surrender and can retake property as tenancy has ended.
b) Landlord can re-rent property on tenants account. The landlord is mitigating damages.
Total Eviction
Direct physical invasion by the landlord. Total eviction.
Partial Eviction
Landlord keeps tenant off part of the property. Changes the lock on the basement door. Basement has now been taken back, tenant can stay on the rest and does not have to pay any rent. Partial eviction by someone other than the landlord: rent is apportioned by the amount that is taken away.
Defenses for not paying rent:
a) No defense, if the reason has nothing to do with the landlord. (Paradine)
b) When you are deprived of your enjoyment by the landlord himself, if you are deprived of your moral, you can not pay the rent. (Dyett)
c) It is rare to be constructively evicted. There must be substantial interference with the use and enjoyment of the property. It must come from the landlord and you have to actually leave. (Jacobs)
d) Where tenant pays for improvements they cannot set off against the rent. (Tuttle)
Examples of “Bad Old Landlord-Tenant Law” (ABRAHAM)
A. No implied landlord promise as to the condition of the premises at the outset of the tenancy
B. No implied landlord obligation to maintain the condition of the premises during the tenancy
C. Independence of covenants: even where the landlord has obligations, they cannot be pleaded as a defense to a major tenant violation such as non-payment of rent. The tenant cannot stop paying rent: he must bring a separate claim
D. Summary process: eviction for non-payment of rent or for holding over gets court priority, sometimes in a specialized court.
E. Forcible entry and detainer: landlord can enter property and retain possession until rent is paid
Implied Warranty of Habitability
Landlord is responsible for factors that make premises unlivable. The tenant’s obligation to pay rent is dependent on landlord’s performance of his obligation (to keep premises habitable).
2 Step Javins Test:
1) Did the alleged violations exist during the period of time for which the past-due rent is claimed.
2) If so, what portion (if any part, or all) of the tenant’s obligation to pay rent was suspended by landlord’s breach of contract.
Steps in buying a house:
- Broker
- Make an offer
- Acceptance of the offer
- K = purchase and sale agreement.
* The legal title remains with the seller until the deed is transferred at the closing; the equitable title moves immediately to the purchasers. - Mortgage or deed of trust (basically a fee simple condition subsequent)
- Title from recording office to ensure that owner does own what he purports to own
- Closing: the deed changes hands from old to new owner
- The deed is recorded in the county clerk’s office, and then describes the extent of the commitments, called warranties, that the old owner makes to the new owners
Three types of warranties
- Warrant Generally: seller responsibility for any defects in the title
- Warrant Specially: seller promises that there are no defects that have arisen during his ownership, but takes no responsibility for competing title claims that owe their origin to some predecessor in the chain of title.
- Quitclaim Deed: seller transfers ownership but makes no promises as to the extent of, or possible exceptions to, his rights. “What you see is what you get!”
Equity
The interest in real estate that the buyer has after paying the mortgage for a period of time. The share that has become the buyers.
Mortgage Title Theory
Because the mortgage generally looks like a conveyance of the legal title, some states purport to treat the mortgage as indeed holding legal title.
Mortgage Lien Theory
A mortgage merely gives the mortgagee security for repayment.
* Today nearly all states treat the mortgage as a lien
Strict Foreclosure
Courts and statutes set a fixed period after default during which the mortgagor could redeem but after which he was barred.
Foreclosure Sale
Once the redemption period expires, a court supervises a foreclosure sale – usually an auction of the property. The outstanding debt is paid to mortgagee (bank) and any excess is paid to the mortgagor. (PW-excess rarely happens b/c not in banks interest.)
Notice Statutes
A subsequent purchaser, who has NO notice of the prior instrument, prevails over a prior grantee who has not recorded.
Shelter Principle
You can shelter someone else when you are the one that is going to lose out. Since the 3rd party has no notice, he will win if he records first. Law protects the innocent.—goes to last person.
Race Statutes
The first person to record wins.
Race-Notice Statutes
The second purchaser only wins if he takes without notice and also records first.
Actual Notice
Being told outright
Constructive Notice
By means of official notice (being recorded in county, attorney has obligation to check recording books/tax records)
Inquiry Notice
Asking seller what is going on (courts will ask if you bought house on your own, then standard is lower)
Joint Tenancy
Two or more people own a single, unified interest in real or personal property (undivided shares). Each joint tenant has exactly the same rights in the property; thus one cannot have a greater interest than the other.
Right of Survivorship
If there are two joint tenants, and one dies, the other becomes sole survivor of the interest that the two of them had previously held jointly.
Right of Possession
Each of the joint tenants owns the “entire” interest, subject only to the rights of the other. Each joint tenant is entitled to occupy the entire premises.
Creation of Joint Tenancy: Four Unities (PITT)
1) Possession: All must have identical rights of possession
2) Interest: Joint tenants ALL have equal interest/access, one unity interest
3) Time: All interests must have vested at same time
4) Title: Must be same instrument; one deed—from same source
Destruction of Joint Tenancy:
1) Partition: physical division of the property, breaks up the estate, converts people into neighbors
2) Severance: When any of the unities is disturbed, the conversion or transformation or reduction of a joint tenancy into a tenancy in common; reduction in the relationship
Tenancy in Common
An estate shared by two or more people in same property at same time. Each tenant in common has a separate “undivided” interest with no right of survivorship. Only one unity required: Possession.
Tenants by the Entirety
Only between married people, this is a special form of joint tenancy with the 4 unities (time, title, interest, possession). Cannot be severed absent divorce.
Types of Easements:
a) Affirmative Easement
b) Negative Easement
c) Appurtenant Easement
d) Easement In Gross
Affirmative Easement
Entitles holder to do a physical act on another’s land
Negative Easement
Enables holder to prevent owner of land from making certain uses of that land
Appurtenant Easement
Benefits its holder in the use of a certain piece of land, either benefiting (“dominant”) or burdening (“servient”) the estate.
Easement In Gross
An easement whose benefit is NOT tied to any particular parcel, but only to the parties.
Termination of Easements
A) Release: An easement may be terminated by a written release complying with the Statute of Frauds.
B) Its Own Terms: An express easement may expire by its own terms, as when A grants to B a right of way for ten years.
C) Unity of Title: An easement terminates when title to the easement and servient tenement come to the same person. (buy both properties to unify ownership)
D) Prescription: If owner of servient tenement uses his land in a manner adversely to the owner of the easement for the time required for acquisition of prescriptive rights, the easement will terminate.
E) Abandonment: An easement may be extinguished by nonuse with acts or words indicating intent never to use the easement again.
F) Estoppel: An easement is extinguished if, in reasonable reliance on the conduct of the owner of the easement, the servient tenant uses the servient tenement in a manner inconsistent with the existence of the easement, and it would be inequitable to restore the privilege of use authorized by the easement.
Covenant
Different from an easement where an easement is a property right, a covenant is a property interest where the owner of the Servient estate must do something on your own property for everybody’s benefit. Covenants run with the land as long as they touch and concern the land, meaning that it does not matter whether you sell, buy, lease, the property, the covenant belongs to the estate, not the owner
Requirements for Covenants
1) Intention (written instrument satisfying the Statute of Frauds was necessary)
2) Notice
3) Touch and Concern
4) Privity
Touch and Concern
A covenant has to touch and concern the LAND. This is device for intent effectuation, through which law conforms itself to the normal, usual, or probable understandings of the community. Does performance make the land more valuable and more useful?
Equitable Servitudes
Generally when you are forbidden from doing something on your own property, it’s an enforceable promise regarding the land in which the remedy will always be an injunction.
Cooperative (Co-op)
A building owned by a corporation, where residents own both stock in the corporation and a lease on a particular apartment.
Condominium
Each resident owns an apartment in fee simple, and also owns stock in the corporation that controls common areas and that contracts to provide services to individual apartments.
Ways easements are created:
a) Express in a document
b) Grant from owner – in exchange for money
c) Eminent domain – can be extended to public utilities
d) Prescription (under principles of adverse possession)
e) Implication – based on the design of the property
f) Necessity – If one property is surrounded by another, there is a necessity to be able to get off the property (Interpreted very strictly)
Ways easements are terminated:
a) Release by dominant estate
b) Expiration on its own terms
c) Unity of time
d) Prescription -re-adverse possess, get back what was adversely possessed from you
e) Abandonment
f) Estoppel
g) “Buy–out”
Zoning
Constitutional (a taking without compensation) if it passes the rational basis test:
1) Cannot be arbitrary or unreasonable and
2) must have substantial relation to public
a) health,
b) safety,
c) morals, or
d) general welfare.
Zoning Considerations
It must be comprehensive (regulations fit into entire plan or scheme); decision making process (political decisions)
Eminent Domain
There is nothing that prevents the government from TAKING, provided 2 mandatory things:
- There is JUST COMPENSATION
- It is serving a PUBLIC PURPOSE
Ejectment
Alegal action by which a person wrongfully ejected from property seeks to recover possession and damages
Essential allegations:
1. Plaintiff has title to the land
2. Plaintiff has been wrongfully dispossessed or ousted
3. Plaintiff has suffered damages
Adverse possession can be used as a defense in . . .
ejectment actions.
If a covenant is in the first document, then . . .
. . . we cannot abrogate something that runs with the land, if you amend it then it can be argued that not valid.
Specific Clauses v. General Clauses
SPECIFIC CLAUSES TRUMP GENERAL CLAUSES
Ultra Vires
An act that negates or voids management boards by going “beyond the power” (exceeds its bounds of the board).
Restrictive Covenants
Restrict the type of house to be built.
1) Acceptable if the intent is clear (to protect property values against ugly homes coming in)
2) OK if they lack specific guidelines and leave decisions up to the discretion of the “architectural committee”
Restrictive Covenants Requirements
Must be
1) reasonable,
2) made in good faith, and
3) not arbitrary or capricious
Possible ways to restrict Free Speech
Time, manner, and place may be restricted, but not altogether.
Trade-off in Covenants
They bring benefits and burdens and every covenantee is entitled to benefits and carries burden that creates standing.
Waste
A tenant for life is liable for waste, for spoiling or destroying the land.
Ameliorative Waste
Affirmative act alters to property substantially, making it more valuable.
Encumbrance
He is not required to pay off the encumbrance, but only keep down the interest, leaving the principle to be paid by the owner of the fee.
Equitable Conversion Doctrine
Pre-closing risk for (no-fault) damages is on the purchaser.
When you convey a tenancy in joint…
…you create a tenancy in common.
Block v. Hirsh stands for
Police power
