Property Essay Rules Flashcards
To memorize relevant Property Rules for Essays (21 cards)
Requirements of a Valid Deed
In order to be valid, a deed must identify the grantor and the grantee, describe the property, contain
words of transfer, and be signed by the grantor.
The Doctrine of Adverse Possession
The doctrine of adverse possession allows title to pass to a person who exercises exclusive physical
possession of a piece of property for a certain amount of time. For adverse possession to occur,
possession must be continuous, open and notorious, actual, exclusive, and hostile.
Open and Notorious (Adverse Possession)
Possession must be
open and notorious such that a reasonable true owner would become aware of the claim.
An Adverse Possessor’s Title
If a person acquires title by adverse possession, that title is good as a title traceable to a period record owner. Interest holders who acquired title by adverse possession do not possess documents
describing their interests that could be recorded. They are protected from subsequent BFPs.
Constructive Eviction
When a landlord substantially interferes with the tenant’s use and enjoyment of the property by breaching a duty to the tenant, the tenant’s obligation to pay rent may be excused under the theory of constructive eviction. In order to end a lease before the end of its term by constructive eviction, the landlord must have breached a duty, which caused the loss of the substantial use and enjoyment of the premises, the tenant must give the landlord notice of the problem and reasonable opportunity to cure, and the tenant must vacate the property within a reasonable period of time. Not every interference with the use and enjoyment of the premises amounts to a constructive eviction. Temporary or de minimis acts generally do not amount to constructive eviction.
A landlord’s duty to repair the premises (Residential)
Under the common law, there was no implied duty on the part of the landlord to repair leased premises. However, the majority of jurisdictions today enforce an implied duty upon the landlord to repair under a residential lease, even when the lease attempts to place the burden on the tenant, except for damages caused by the tenant.
A landlord’s duty to repair the premises (Commerical)
Courts are reluctant to imply a landlord’s duty to repair in commercial leases because the implied warranty of habitability does not apply in commercial leases. Moreover, the covenant of quiet enjoyment is breached only when the landlord, someone claiming through the landlord, or someone with superior title disrupts the possession of the tenant.
Termination of a lease by Tenant’s Surrender
Termination of a lease occurs automatically upon the expiration of the term. Termination may also occur before the expiration of the term when the tenant surrenders the leasehold, and the landlord accepts the return of the leasehold. When a tenant abandons the leasehold without justification, the landlord may treat the abandonment as an offer of surrender and could accept that surrender by retaking the premises or the landlord may attempt to re-rent the premises on the tenant’s behalf and hold the tenant liable for any deficiency.
Landlord’s responsibility to mitigate after a tenant’s breach
The majority of jurisdictions now require a landlord to mitigate damages by attempting to re-rent the premises in the event that the tenant abandons the property and breaches of the lease. Accordingly, the landlord has a responsibility to make a good-faith attempt to re-rent the property.
Landlord suing for Unpaid Rent
While the landlord may sue the tenant for rent as it becomes due, a landlord may not sue for future rent under the lease.
Termination of an Easement through Merger
An easement is terminated if the owner of the dominant or servient estate acquires fee title to the other estate. The easement is said to “merge” into the title. The merger of property interests results in the extinguishment of the property right.
Easement by Implication
If the owner of two parcels of land previously used one parcel to benefit the other, then the court may find that, upon the transfer of one parcel, the parties intended the use to continue if that use was continuous, apparent or known, and reasonably necessary to the dominant land’s use and enjoyment
Distributing proceeds from a disclosure sale
When multiple interests must be paid out of the proceeds of a foreclosure sale, generally, the earliest mortgage placed on the property has priority over the other interests.
Future-Advances mortgages priority in Foreclosure Sales
Obligatory payments under a senior future-advances mortgage paid out after a junior lender remits its loan amount and records its lien have priority over amounts loaned by the junior lender.
Joint Tenancy
A joint tenancy exists when at least two people own property with the right of survivorship. In addition to the right of survivorship, each joint tenant must have the four unities (PITT): the right to possess or use the property and equal interests which were created at the same time and in the same instrument. The severance of joint tenancy may occur in several ways and converts it into a tenancy in common.
Joint Tenant Granting a Mortgage (Title Theory)
A joint tenant may grant a mortgage in his joint tenancy interest. In title theory states, which is the minority of states, the granting of a mortgage constitutes a transfer of title. A transfer of title severs the joint tenancy and converts it into a tenancy in common.
Joint Tenant Leasing Interest
There is a split among jurisdictions with respect to joint tenancies when one joint tenant leases his interest. Some jurisdictions hold that the lease destroys the unity of interest and thus severs the joint tenancy, while other jurisdictions believe that the lease merely temporarily suspends the joint tenancy, which resumes upon expiration of the lease.
Tenancy in common
A tenancy in common exists when two or more co-owners have an equal right to possess property, but do not have a right of survivorship. In that case, each co-tenant holds an undivided interest with unrestricted rights to possess the whole property, regardless of the size of the co-tenant’s interest. Each tenant can unilaterally transfer, devise, mortgage, or lease his interest to a third party, without affecting the interest of the other tenants.
What rights does a new tenant (lessee) have when granted the interest from a tenant in common?
The new tenant has the same rights with respect to the building that the tenant had and holds an undivided interest with unrestricted rights to the whole property.
Co-tenants receiving rent from third parties
A co-tenant must account to other co-tenants for rent received from third parties, but can deduct operating expenses, including necessary repairs, when calculating net proceeds. Third-party rents are divided based on the ownership interest of each tenant.
Death of a joint tenant
At death, a joint tenant’s property passes automatically to the remaining joint tenants due to the right of survivorship. Any encumbrance on the dead tenants’ interest terminates?
