Property I Rules to Remember Flashcards
(41 cards)
Abandonment factors
When tenant
- Vacates the leased premises without justification
- Lacks the present intent to return; and
- Defaults in the payment of rent
Alby factors
Purpose Scope Duration Consideration Notice
Results if LL accept surrender:
On property side: terminates the lease (and therefore T’s liability for future rent); any re-letting by LL is on “LL’s account.”
On contract side, T still liable for previous unpaid rent and “damages” consequent to the breach because of anticipatory breach of contract.
Damages = difference (if any) between rent specified in lease and fair rental value of property
“Rule of capture”: Pursuer has possession/occupancy (and thus ownership) if:
- Intent to appropriate, and
- Conduct: Deprive it of its natural liberty, and Bring it within certain control
Shooting may count if it dies
AP Six Elements
- Actual Entry/Possession
- Exclusive
- Open & Notorious
- Adverse Possession
- Under a Claim of Right
- Continuous Possession […for the Statutory Period]
Under a claim of right jdxs
Jurisdictional split:
Maj: Objective standard, state of mind is irrelevant, court uses objective elements and skip this step.
Min: Innocent trespasser/Good faith. Mistaken possession, must think that it is their own land but they’re wrong.
Extreme Min: “Intent to claim”, aggressive trespasser, bad faith. Knowing and intentional possession; possessor must think does not own land to meet this standard.
CONSTRUCTIVE POSSESSION:
- Adverse possessor who has color of title
- And possesses elements for some part of the property described in the fault deed/instrument
- Then deemed to have constructive possession of the rest of the land described in the faulty instrument
- Her “constructive possession” claim will be stronger than most other claims (except another AP for some part of that property)
When courts can force a sale without consent of future interest holder
Can force future interest holders to sell IF:
- Must show necessity
- And for the best interest of all parties
“durational language” examples
So long as
While
During the time…
Until…
Non-durational language examples
Provided that;
However;
But if;
Alternative Tests for Indirect Restriction of Alienation: MAJ rule
Preiskorn v. Maloof:
- Is the condition a restraint on alienation or merely a restriction on use [or some other property right]? (If merely restriction on use [or other property right] then OK)
- If a restraint on alienation in effect, then apply Alby factors
Alternative Tests for Indirect Restriction of Alienation: MIN rule
Falls City v. Missouri Pacific Railroad: Use of restrictions are valid and enforceable unless have practical effect of “affecting marketability adversely” by unreasonably limiting the class of persons to whom it may be alienated.
Remainder vs Executory Interest Rule
To be a Remainder:
- The immediately preceding estate must have a natural end, AND
- The future interest under consideration must be CAPABLE (in principle) of becoming possessory immediately at the end of the preceding estate (even if it doesn’t, in fact, do so)
Otherwise it’s an executory interest
Vested Remainder vs Contingent Remainder Rule
To be a Vested Remainder: the interest must be:
- Given to an ascertained person AND
- Not subject to any unmet condition precedent.
Otherwise it’s a Contingent Remainder.
Alternative Contingent Remainder
ie. if B becomes lawyer it goes to B, if not it goes to C. C has ACR
Tenancy in Common general rules
- Own separate undivided interests in the whole.
- Equal right to use the whole
- Can exclude 3rd persons but not cotenants, otherwise = “ouster”
- Can sell their separate interest to others or bring action to partition
- No right to survivorship
Four unities
(1) Time (2) Title (3) Interest (4) Possession
TE and Mortgages
MAJ: Mortgage by one spouse is invalid because they don’t have the unilateral right to alienate/incur debt.
MIN: Mortgage is valid and creditors have right to debtor spouse’s future interest (right of survivorship) and/or present interest.
Accounting rule: Cotenants using land for own use or business:
Majority: Absent agreement or ouster, not owe rent or profits to co tenants because equal right to possess whole, but cannot exclude them.
Minority: Absent contrary agreement, cotenant(s) in possession does owe rent to cotenants out of possession.
Accounting rule: Cotenants who lease property to 3Ps:
Must share profits with other cotenants in proportion to their ownership shares.
Contribution Rules
“Carrying costs” & “Necessary repair” : Cotenants must contribute pro rata shares.
“Unilateral improver”: Bears risk and gets potential benefit of “improvement” measured by effect on selling price of property.
Out of possession tenants Waste rule
Out of possession cotenant(s) can sue in-possession cotenant for waste and seek injunction and/or damages.
Reimbursement from oop tenants
MAJ: Esteves, cotenant can ask for reimbursement minus credit for sole occupancy
MIN: No defensive offset unless ouster
Partition by kind rules
Court would partition in kind unless:
- Physical attributes of the land makes partition in kind impracticable or inequitable, and
- The interests of all cotenants are better served with a sale.
