Real Property Flashcards
(43 cards)
How to Create a Joint Tenancy - 4 Unities
4 Unities - T-TIP: Joint tenants must take their interests:
T: at the same TIME
T: by the same TITLE (meaning, in the same legal instrument)
I: with IDENTICAL, equal INTERESTS; and
P: with rights to POSSESS the whole
At common law, a conveyance of property from O “to O and A as joint tenants with rights of survivorship” creates a _____
Tenancy in common
Not a joint tenancy because the unities of time and title are not present because O acquired his interest first by another instrument
When property is held in joint tenancy or tenancy in common, which of the following is not a co-tenant’s right?
Compel contribution for the cost of improvements (although a joint tenant or tenant in common may have a right to compel the contribution from other co-tenants for the cost of necessary repairs, taxes, and payments due on mortgages, she does not have a right to compel contribution for the cost of improvements)
Co-tenant has right to:
- mortgage her interest
- share in rents paid by 3rd parties
- possess the entire estate
Joint Tenancy - Mortgages
In most states, a mortgage is lien on title and does not sever a joint tenancy - severance occurs only if the mortgage is foreclosed and the property is sold.
In title theory states, however, the execution of a mortgage does sever a joint tenancy (because, under this minority view, giving a creditor a lien on one’s share is the equivalent of transferring title to that creditor)
When one joint tenant dies, their property passes free and clear to the surviving joint tenant
- so in a lien theory state, if one JT executes a mortgage on the property and later dies, their 1/2 interest passes free and clear of the mortgage to the surviving JT (the mortgage can be held only against the property the deceased JT had - and when they die - the right of survivorship operates to end the deceased JT’s interest and automatically vests in the survivor)
Partial Actual Eviction by Landlord
Relieves tenant of the obligation to pay rent for the entire premises, even though the tenant continues in possession of the remainder of the premises
Partial Actual Eviction by Paramount Title Holder
Results in an apportionment of rent; i.e., the tenant is liable for the reasonable rental value of the portion that he continues to possess
Warranty of Habitability
Under the implied warranty of habitability for residential tenancies, the landlord covenants that the premises are suitable for human residence
May a tenant waive the implied warranty of habitability?
NO, because such a waiver is against public policy
Implied Covenant of Quiet Enjoyment
Under the implied covenant of quiet enjoyment, the landlord covenants that neither he nor someone with paramount title will interfere with the tenant’s quiet enjoyment and possession of the premises. The covenant may be breached by: total actual eviction, partial actual eviction, or constructive eviction
Effect of Landlord Assigning Their Interest
A landlord may assign the rents and reversion interest that he owns
The assignee is liable to the tenants for performance of all covenants made by the original landlord in the lease, provided that those covenants run with the land
The original landlord also remains on all of the covenants he made in the lease (ex: covenant of quiet enjoyment - fill in others)
Covenants Against Assignment or Sublease
If a landlord consents to one transfer that violates a covenant against assignment or sublease, he waives his right to avoid future transfers - the landlord may reserve the right to avoid future transfers, but such reservation must take place at the time of granting consent
*A covenant against assignment or sublease is NOT an unreasonable restraint on alienation - all jurisdictions permit and enforce such covenants
A covenant against assignment does NOT prevent the tenant from subleasing her interest - covenants against assignment or sublease are strictly construed against the landlord - thus, a covenant prohibiting assignment does not prohibit subleasing and vice versa
If a tenant transfers his interest in violation of a covenant against assignment or sublease, the transfer is NOT void - however, the landlord usually may terminate the lease under the lease terms or a statute or sue for damages
Assignment
A complete transfer of the entire remaining lease term constitutes an assignment of the lease
- if the tenant retains any part of the remaining lease term, other than a right of reentry for breach of the original lease terms, the transfer is a sublease
*Tenancy at will CANNOT be assigned - the attempted assignment is void and and terminates the tenancy at will by operation of law
*A lease creating a tenancy for more than 1 year, including an assignment of an interest in the lease for more than 1 year, must be in writing to satisfy the SOF
Easement by Prescription
Acquiring a prescriptive easement is analogous to acquiring property by adverse possession, except that the use need not be exclusive (the user may share the use with the owner or other easement claimants)
The use must be:
(1) Open & notorious
(2) adverse, and
(3) continuous and uninterrupted for the statutory period
Exclusive use is not required
If an easement is said to be surcharged, this means:
The easement’s legal scope was exceeded
The holder of an easement has the right to use another’s land (servient tenement) but has no right to possess the land. The scope of the easement is determined by the reasonable intent of the original parties, and when the scope has been specified, these specifics will govern. However, when an easement’s scope has been set out only in general language, courts will interpret it to accommodate the holder’s present and future reasonable needs. In either event, if the easement holder uses the easement in a way that exceeds its legal scope, the easement is surcharged - the servient owner may enjoin the excess use and possibly sue for damages if the land has been harmed.
Termination of easement - 8 ways
END CRAMP
(1) Estoppel
(2) Necessity ends
(3) Destruction (involuntary)
(4) Condemnation
(5) Release
(6) Abandonment
(7) Merger
(8) Prescription
Easement Implied from Preexisting Use
For the court to imply an easement from preexisting use, it would have to find:
(1) the previous (prior to division) use on the servient part was apparent and continuous, AND
(2) the parties expected that the used would survive devision because it is reasonably necessary to the dominant tenement’s use and enjoyment
Implied Equitable Servitude (Reciprocal Negative Servitude)
An equitable servitude is a covenant that, regardless of whether it runs with the land at law, can be enforced in equity against assignees of the burdened land who have notice of it.
Generally, equitable servitudes are created by covenants contained in a writing that satisfies the SOF. However, in the absence of a writing, reciprocal negative servitudes may be implied if:
(1) there is a common scheme for development (i.e., a plan existing at the time sales of the subdivision parcels began that all parcels be developed within the terms of the negative covenant); and
(2) the grantee had actual, record, or inquiry notice of the covenant
Equitable Servitudes Creation
(Requirements for the Burden of an Equitable Servitude to Run to Successors in Interest)
The burden of an equitable servitude will run to successors in interest if: (WITNES)
(1) The original promise was in writing that satisfies the SOF (exception - common scheme)
(2) the covenanting parties intended that successors in interest be bound by the covenant;
(3) the covenant touches and concerns the land (that is, it benefits the covenantor and their successor in their use and enjoyment of the burdened land); and
(4) the successor in interest has notice of the covenant (if they’ve given value);
*A subsequent purchaser for value of land burdened by a covenant is not bound by it in equity unless they had notice of the covenant when they acquired the land
- note that in most states, successors of the burdened land who are not purchasers (for example, donees) are bound by the covenant whether they had notice or not.
Horizontal privity between the original covenanting parties and vertical privity between the covenantor and their successor in interest are NOT required
Does the existence of a visible easement that benefits the property render title to the land unmarketable?
NO, a visible easement that benefits the property would not render title to land unmarketable. Most courts hold that a beneficial easement (e.g., a utility easement) that was visible or known to the buyer does not constitute an encumbrance
In contrast, an easement that reduces the value of the property or is unknown to the buyer constitutes an encumbrances that renders title unmarketable
Which of the following is true when a seller breaches the implies covenant of marketable title?
(A) the buyer may sue for breach after closing
(B) the seller can obtain specific performance
(C) the closing date may be extended to allow the seller time to cure
(D) rescission is unavailable as a remedy
(C)
When a seller of land breaches the implied covenant of marketable title, the closing date may be extended to allow the seller time to cure
- If the buyer determines that the seller’s title is unmarketable, he must notify the seller and give her a reasonable time to cure, even if this requires extending the closing date, and even if time is of the essence
*When a seller of land breaches the implied covenant of marketable title, rescission IS available as a remedy - if the sellers fails to cure the defects, then the buyer may rescind the contract, sue for damages and breach, and get specific performance with abatement in purchase price.
*When a seller of land breaches the implied covenant of marketable title, the buyer may NOT sue for breach after closing. The implied covenant of marketable title applies at the contract stage of a land sale transaction, before the closing. The closing extinguishes the contract, which is said to merge with the deed. Then, absent fraud, the seller is no longer liable on this implied covenant - the buyer must rely on any assurances in the deed.
Adverse Possession Elements
To establish title by adverse possession, the possessor must show:
(1) an actual entry giving exclusive possession that is
(2) open and notorious
(3) adverse (hostile/under a claim of right), and
(4) continuous throughout the statutory period
Hostile
The hostility element of adverse possession requires that the possessor lack the true owner’s permission to be on the land (it does not matter whether the possessor believes he is on his own land or knows he is trespassing on someone else’s land)
Continuous
Open and Notorious
