Flashcards in Property Deck (41):
What does a wife recieve based on her dower interest?
1/3 interest in all her husbands seized land at husbands death
What estate does an adverse possesor gain when they begin possessing property?
A.P gains estate in existence (life estate, fee simple, etc) at the date AP began possessing property
*if estate in existence is life estate, a new period (starts limitations period over) of possession will begin upon death of life-estate holder
When will a junior interest not be extinguised after a foreclosure sale? (junior mortgage)
when holder is NOT given notice of foreclosure (buyer takes subject to junior interest/ mortgage holders mortgage)
what are the 2 types of waste a life tenant may be liable for?
1. permissive waste
2. affirmative waste
What is permissive waste
when life tenant fails to preserve the land
What is affirmative waste?
voluntary waste of natural resources by life tenant unless waste:
1. is necessary for repair or maintenance
2. land is only suitable for such use
3. use of natural resources was expressly or impliedly permitted by the grantor
What is ameliorative waste?
Waste that benefits the property economically
Under what 3 conditions may a life tenant commit ameliorative waste?
1. when the market value of future interest are not diminished AND EITHER
2. the remaindermen do not object OR
3. there is a substantial and permanent change in neighborhood conditions (residential to 90% industrial) that has deprived the property of reasonable productivity/usefulness in its current form
What is the significance of a fee simple determinable to a grantor?
IF condition in language of transfer is met then grantor has a AUTOMATIC right to re-enter property.
**key words 'so long as', 'while', 'during'
What is the significance of a fee simple subject to a condition subsequent to a grantor?
right o re-entry must be exercised (does not occur automatically)
**key words 'but if'
What 3 types of interests are subject to the RAP?
1. contingent remainders
2. shifting executory interests
3. springing executory interests
**executory interest that follows a defeasible fee usually violates RAP
What are the general duties of a tenant?
1. duty to repair (waste)
2. duty not to use premises for illegal purposes
3. duty to pay rent
What are the general duties of a landlord?
1. duty to deliver possession of the premises
2. preserve the covenant of quiet enjoyment
3. preserve the implied warranty of habitability
4. refrain from retaliatory eviction
What is retaliatory eviction?
Landlord may not terminate lease or penalize tenant in retaliation for tenant exercising her legal rights
In what 3 ways may the covenant for quiet enjoyment be breached?
1. actual eviction (by landlord or paramount title holder)
2. partial eviction -- tenant only excluded from part of property
3. constructive eviction -- property rendered uninhabitable due to landlords act or omission
What effect does partial eviction by a landlord have on a tenant?
relieves tenant of obligation to pay rent on entire premises
What effect does partial eviction by a 3rd party have on tenant?
tenant remains liable for reasonable rental value of the portion of the premises she continues to occupy
What are the 4 types of tenancies?
1. tenancy for years -- fixed period of time
2. periodic tenancy -- ex. month to month
3. tenancy at will
4. tenancy at sufferance
What is a tenancy at Sufferance?
arises when a tenant wrongfully remains in possession after the expiration of a lawful tenancy. (Lasts until landlord takes steps to evict tenant -- no notice to tenant required)
When can a periodic tenancy be terminated?
After notice is given to tenant at least one full period in advance of lease termination (tenancy is automatically renewed until proper notice of termination is given)
How far in advance must notice of termination be provided for a year to year lease?
six months notice
What is an easement?
right to use another's land for a special purpose -- does not include the right to possession of the land
What is an easement appurtenant?
easement that allows the holder physical use or enjoyment of another's land. Must be 2 tracts of land involved -- dominant (estate benefited) and servient (estate subject to easement)
What is an easement in gross?
easement that allow its holder to use the servient tenement regardless of whether he has possession of another adjoining tract of land ex: right to swim on blackacre, or right to put billboards on blackacre)
What are the 4 methods for creating an easement?
1. express grant
2. express reservation (by grantor only -- can't reserve for someone else)
3. by implication
4. by prescription
What are the 3 ways an easement is created by implication?
1. Implied from existing use
2. Implied from recorded subdivision plats
3. Implied from prior grant to extract materials from land
4. Easement by necessity
What is an easement by necessity?
arises when landlord sells a portion of his land and by this division deprives one lot of access a to public road or utility lines. (owner of servient lot can locate the easement)
**terminates when necessity ends
When may an easement be implied from existing use?
1. when prior to the division of a piece of land,
2. an apparent and continuous use exists on the servient part
3. that use is reasonably necessary for enjoyment of the dominant part AND
4. court determines that parties intended for the use to continue after division
What are the elements of acquiring an easement by prescription?
1. open and notorious use
2. adverse use (w/o owners permission)
3. continuous and uninterrupted use
4. for the statutory period
**cannot be acquired in public land
When is an easement terminated by abandonment
when a holder demonstrates by a physical action an intent to permanently abandon the easement. Non-use or merely expressing a wish to abandon does not extinguish/terminate the easement.
What is a real covenant?
written promise to do something on land or a promise not to do something on land
What 5 requirements must be met for a successor in interest to a burdened estate to be bound by a real covenant? (burden to run)
3. horizontal privity b/w original covenanting parties
4. vertical privity
5. touch and concern
What does the notice requirement entail for a burden of a covenant to run with the land?
A subsequent purchaser for value must have had actual, or constructive (inquiry or record) notice of the arrangement at the time of purchase (if no such notice given burden does not run)
When will a negative covenant touch and concern land?
when it restricts the holder of the servient estate in his use of that parcel of land
**negative covenant-- agreement not to do something
When will an affirmative covenant touch and concern land?
if it requires the owner of the servient estate to do something which increases his obligations in connection with his enjoyment of the land
What 3 requirements must be met for a promisee/covenantee's successor in interest to enforce a covenant? (benefit to run)
2. vertical privity (any succeeding possessory estate may enforce the benefit)
3. touch and concern
What is an equitable servitude?
covenant that equity will enforce against assignees of the burdened land who have notice of the covenant regardless of whether burden runs with the land at law.
**for party seeking equitable relief (injunction) NOT money damages
What is required for a negative equitable servitude to be implied and enforced?
1. common scheme (for residential subdivision)
2. Notice -- actual or constructive (inquiry or record)
How may the existence of a common scheme be evidenced? (for negative equitable servitude purposes)
1. a recorded plat
2. a general pattern of restriction
3. oral representations to early buyers
What 3 elements are required for the burden of an equitable servitude to run with the land?
2. actual or constructive notice
3. touch and concern