Real Property Flashcards
Joint Tenancy
Two or more people owning a single, unified interest in a property with a right of survivorship which gives the deceased partner’s share automatically to the surviving partner. The joint tenancy is alienable but not devisable or descendible.
Joint Tenancy Creation
Joint tenants must take their interest 1) at the same time, 2) by the same title, 3) with identical interests and 4) equal right to possess the whole. The right of survivorship must be clearly expressed. A strawman may be needed to create the relationship.
Joint Tenancy Severance
May be through partition, sale or mortage.
Partition
A joint tenancy is severed when the interests are divided either by voluntary agreement or by court ordered sale or by court-ordered division of property.
Tenancy by the entirety
A marital interest in property with right of survivorship. Creditors of one spouse cannot reach property owned this way and neither spouse can defeat the right of survivorship alone through transfer.
Tenancy by the entirety is presumed in any conveyance between married partners unless explicitly stated otherwise.
Tenancy in Common
Two or more people own property with no right of survivorship. Each interest is descendible, devisable and alienable. Each co-tenant owns a part of the property with the right to possess the whole.
Universal Tenant Rights and Duties
Applies to all landlord-tenant relationships:
- Possession: May not exclude other co-tenants from any part of the property (called wrongful ouster).
- Adverse possession: Co tenants cannot acquire title unless there is ouster shown with hostility.
- Rent from Co-tenant in exclusive possession: Absent ouster, a co-tenant in exclusive possession is not liable to others for rent.
Rent from third parties - must provide co-tenants fair share
Carrying Costs: Each tenant is responsible for carrying costs based on undivided share of the property (taxes, mortgage and interest payments).
Repairs: May seek contribution for repairs that are reasonable or necessary if co-tenants were given notice
Improvments - no right to contribution for improvements (at partition co-tenant may seek credit for any increase in value due to improvements or is liable for any diminution in value that the improvements caused.
Waste: Co-tenant must not commit waste
Parition: May bring an action for partition by voluntary agreement or court action.
Universal Tenant’s Rights and Duties - Rent
Absent ouster, a co-tenant in exclusive possession is not liable to the others for rent.
Universal Tenant’s Rights and Duties - Carrying Costs
Applies to all landlord-tenant relationships:
Carrying Costs: Each tenant is responsible for carrying costs based on undivided share of the property (taxes, mortgage and interest payments).
Universal Tenant’s Rights and Duties - Repairs
Applies to all landlord-tenant relationships:
Repairs: May seek contribution for repairs that are reasonable or necessary if co-tenants were given notice.
Universal Tenant’s Rights and Duties - Improvements
Applies to all landlord-tenant relationships:
Improvements - no right to contribution for improvements (at partition co-tenant may seek credit for any increase in value due to improvements or is liable for any diminution in value that the improvements caused.
Universal Tenant Rights and Duties
Applies to all landlord-tenant relationships:
- Possession: May not exclude other co-tenants from any part of the property (called wrongful ouster).
- Adverse possession: Co tenants cannot acquire title unless there is ouster shown with hostility.
- Rent from Co-tenant in exclusive possession: Absent ouster, a co-tenant in exclusive possession is not liable to others for rent.
Rent from third parties - must provide co-tenants a fair share
Carrying Costs: Each tenant is responsible for carrying costs based on an undivided share of the property (taxes, mortgage and interest payments).
Repairs: May seek contribution for repairs that are reasonable or necessary if co-tenants were given notice
Improvements - no right to contribution for improvements (at partition co-tenant may seek credit for any increase in value due to improvements or is liable for any diminution in value that the improvements caused.
Waste: Co-tenant must not commit waste
Parition: May bring an action for partition by voluntary agreement or court action.
Tenancy for Years
The lease is for a fixed number of years and has a definite end date.
Periodic Tenancy
A lease that continues for successive intervals until one party gives notice of its termination
Periodic Tenancy Creation
Implied: 1) No provision is mentioned but rent is paid in set intervals, 2) a tenancy for years fails due to the statute of limitations, 3) a tenancy for years ends and an implied periodic tenancy (holdover tenancy) is created unless the landlord gives notice of a change of terms or an increase of rent before the tenancy for years ends. Commercial leases create a year-to-year tenancy with the lease’s terms unless notice is given before the lease ends.
Express: Expressly calling it month to month or otherwise explicitly agreeing to terms.
Termination: Written notice is required with at least as much notice as one period in the term unless otherwise agreed. If the lease is year-to-year then notice must be given six months before the end of the lease.
Tenancy at Will
A tenancy with no fixed duration that lasts as long as both parties desire. Either party can end at any time but a reasonable demand to vacate is required.
Tenancy at Sufferance
When the tenant stays past the expiration of the lease while the landlord accepts rent. This ends went he landlord evicts or elects to hold the tenant to a new lease.
Tenant Duties
1) Pay rent, 2) liable to third parties, 3) duty to repair
Tenant Duties - Pay Rent
Duty to pay rent.
1) Tenant in Possession of Premises:
- LL can evict and hold tenants liable for past rent, or allow tenant to stay and sue for past rent. LL may not use self-help such as changing locks or removing belongings.
2) Tenant NOT in possession:
- LL can treat tenants abandonment as a surrender through words or acts indicating the tenant’s intent and accept (unless the lease is greater than one year - then must be in writing), hold the tenant liable for unpaid rent, or re-let the premises and hold tenants liable for the deficiency.
Doctrine of Equitable Conversion
Once a contract is signed and each party is entitled to specific performance, equity regards the purchaser as the owner of the real property. The seller’s interest, which consists of the right to the proceeds of the sale, is considered to be personal property. This doctrine also affects the passage of title when a party to a contract dies before the contract has been completed. In general, it holds that a deceased seller’s interest passes as personal property and a deceased buyer’s interest as real property. If the seller dies, the bare legal title passes to the takers of his real property, but they must give up the title to the buyer when the contract closes. When the purchase price is paid, the money passes as personal property to those who take the seller’s personal property. If the buyer dies, the taker of his real property can demand a conveyance of the land at the closing of the contract. The majority rule is that takers of the real property will take it subject to the vendor’s lien for the purchase price. As a practical matter, the takers of the real property will have to pay the price unless the testator specifically provided to the contrary.
Area Variance granting requirements
The owner suffers a hardship due to the way the land is currently zoned, and the variance will protect the public interest.
Easement by necessity
Is created when the owner of a tract of land sells a part of the tract and by this division deprives one lot of access to a public road or utility line. When this happens, a right-of-way for absolute necessity is created by implied grant over the lot with access to the public road or utility line.
Accession
Term used to describe the intent of the annexor to make the chattels a permanent part of the real estate.
Fixture rules
Chattel that has been so affixed to land that it has ceased being personal property and has become part of the realty.
Common ownership refers to when a person owns both the land and the fixtures affixed to it. Divided ownership occurs when a landlord owns the property, but someone else affixes the chattel to the land. In both types of ownership cases, where the items become incorporated into the realty so fully that they lose their identity, they become part of the realty. Similarly, where identification of the chattel is still possible, but removal would cause considerable loss or destruction, the items are considered fixtures (like heating pipes in a house). For divided ownership cases, the question is whether the ownership of the chattel has passed to the landowner.
License
Permission to use the land of another.
Revocable anytime and not subject to the Statute of Frauds
Common-interest communities governance
IDs are usually created through legal documents drafted by the developer, which may change according to the community’s needs. Typically, these types of communities are governed by an association made up of individual unit owners, most often through an elected board. There is a distinction between (1) association-imposed rules that are contained in the deeds or declaration of the CIDs and (2) rules subsequently adopted by property owner associations for community government. As to the latter category, regulations adopted by an association and not contained in governing documents, courts apply a “reasonableness” standard. Determining reasonableness requires balancing the utility of the purpose served by the restraint against the harm that is likely to flow from its enforcement. For rules not contained in governing documents, they will typically be considered reasonable if their purpose is to protect common property. See Restatement (Third) of Property: Servitudes 6.7(1)(b), stating that an association board has an “implied power to adopt reasonable rules to . . . govern the use of individually owned property to protect the common property.”
Cumulative Zoning Ordinance
creates a hierarchy of uses of land. Under a cumulative zoning ordinance, land that is zoned for a particular use may be used for the stated purpose or any higher use
Non-cumulative zoning ordinance
land may be used only for the purpose for which it is zoned. A use that exists at the time of passage of a zoning ordinance that does not conform cannot be eliminated at once. Generally, the nonconforming use may continue indefinitely, but any change in the use must comply with the zoning ordinance.
Variance
A waiver from a zoning requirement
Doctrine of Amortization
A means for terminating a nonconforming use
Private Nuisance
Private nuisances are interferences with a plaintiff’s use or enjoyment of his property. To make a claim for private nuisance, the plaintiff has the burden to show three elements: (i) the plaintiff has a possessory interest in the land; (ii)
the defendant performed an act that interfered with the plaintiff’s use and enjoyment of his property; and (iii) that the defendant’s interference with the plaintiff’s use or enjoyment of land was substantial and unreasonable. A substantial
interference is one that would be offensive, inconvenient, or annoying to a reasonable person. Unreasonable interference is evaluated by balancing the social usefulness of the interference with the local conduct of the community.
Joint Tenancy and Mortgages
A joint tenant’s execution of a mortgage on their share severs the joint tenancy to that share in states that follow the title theory of mortgages. In states that follow the lien theory of mortgages, the joint tenancy will not be severed.
Mortgage
A mortgage is the conveyance of a security interest in land, intended by the parties to be collateral. It is the combination of a debt and a voluntary lien on the property to secure that debt.
Foreclosure
The legal process where through judicial action land is sold and the proceeds are used to satisfy the debt.
Rent from a co-tenant in exclusive possession:
Absent ouster, a co-tenant in exclusive possession is NOT liable to others for rent.
Rent from Third Parties
A co-tenant who leases all or part of the premises to a third party must provide the other co-tenants with their fair share of the rental income
Carrying Costs:
Each co-tenant is responsible for their fair share of the carrying costs (i.e. insurance, maintenance, property taxes, and/or mortgage payments).
Tenant Repairs
A co-tenant can seek contribution for reasonable/necessary repairs IF he/she has informed the other co-tenants of the need to repair.
Tenancy for Years:
Tenancy for years is a tenancy for a fixed period of time where the date of termination is given.
Tenant Duty to Repair
If lease is silent then tenant must maintain the premises and make ordinary repairs as well as not commit waste.
Implied warranty of habitability:
The premises must be fit for basic human habitation.
Remedies: Move out, repair and deduct costs from future rent, reduce or withhold rent until the court decides fair rental value, remain in possession while paying rent and seeking money damages.
Constructive Eviction
If a landlord has constructively evicted his tenant, the tenant will be discharged from the duty to pay rent. Requires 1) substantial interference, 2) tenant to give notice, and 3) leave within a reasonable time; results in tenant being relieved of the obligation to pay future rent.
License
A license is mere privilege to enter another’s land for a specific purpose. Licenses are freely revocable by the licensor unless estoppel applies. No writing is required.
Eminent Domain:
The Fifth Amendment of the Constitution prohibits the government from taking private property for public use without justification.
Types of Takings for Fifth Amendment purposes
1) Physical, 2) regulatory if the government renders the land economically unviable.
Must pay just compensation.
Temporary deprivations of the property are not takings if the government’s actions are reasonable.
Implicit or Regulatory Taking
A government regulation that, although not intended to be a taking has the same legal effect.
Occurs when a regulation removes the economic value from property.
Regulatory Taking (Penn Central Balancing Test)
- The nature of the government action, 2) the private property owner’s reasonable investment-backed expectations and 3) the level of diminution of value in the owner’s private property value.
Takings Compensation
Just Compensation - generally measured by the Fair Market Value of a piece of property or the value as stipulated by the parties. Value of the property by owner is irrelevant.
Remedies to a Taking
Government must either 1) Compensate owner or 2) terminate the regulation and pay owner for damages that occurred while still in effect.
Warranty Deed
AKA General Warranty Deed: Warrants aganst all defects in title, which include defects caused by prior grantors.
Six covenants:
Present - Covenant of Seisin (promises owns the property), Covenant of Right to Convey (grantor promises she has power to make transfer), Covenant Against Encumbrances (Promises there are no servitudes or mortages on property)
Future - Queit Enjoyment (grantee will not be disturbed in his possession by third party’s lawful claim), Covenant of Warranty - promises to defend the grantee if any others bring lawful claims of title, Covenant for Future Assurances - Promises to do whatever is necessary to perfect title in future if it turns out to be imperfect.
Notice
Notice: There are three types of notice that a buyer may be charged with: Actual Notice, Inquiry Notice, Record Notice.
Inquiry Notice
The buyer is on inquiry notice of whatever an examination of the property would show. This is regardless of whether or not the buyer actually makes an examination.
Duty to inspect
The buyer has a duty to inspect the premises before the transfer of title. Thus, if another person had possession the buyer will have inquiry notice.
