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Flashcards in Real Property Deck (44)
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[REAL PROP] • 1 • Present Possessory Interests • Fee Simple Subject to Condition Subsequent •

A fee simple subject to a condition subsequent gives a present possessory interest to the grantee, BUT reserves a future interest in the property in favor of the grantor. It is created when the grantor uses express conditional language to indicate that the interest being conveyed is subject to the grantors right of re-entry IF the specified condition occurs . If the condition occurs, the grantees present interest in the property will only be lost IF the grantor affirmatively exercises his right of re-entry and re-takes possession of the land.


[REAL PROP] • 1 • Present Possessory Interests • Restraints on Alienation •

A restraint on alienation occurs when the grantor attempts to restrict the alienability or transferability of the land. Three types of restraints exist: (1) disabling restraints (all transfers are void); (2) forfeiture restraints (land is forfeited a transfer is attempted); AND (3) promissory restraints (an attempted transfer breaches a covenant). Restraints are enforceable based on (1) the interest conveyed ; AND (2) whether the restraint is reasonable (i.e. the restraint lasts for a specific period of time or concerns the appearance or purpose of the land).


[REAL PROP] • 1 • Present Possessory Interests • Waste •

All those with a present possessory interest, including tenants under a lease, must NOT damage or commit waste to the property. Three types of waste exist: (1) affirmative waste (damages that are intentional/negligent or the unapproved exploitation of minerals on the property); (2) permissive waste (failure to make required repairs); AND (3) ameliorative waste (a substantial change in the use of the property that increases its value).


[REAL PROP] • 4 • Easements • Easements by Express Agreement, Prescription, Implication, and Necessity •

An easement is a non-possessory interest in the use of someone else's land . Easements are either in gross or appurtenant.

An easement in gross benefits a specific owners enjoyment and use of the land and DOES NOT attach to the land (unless the easement is for commercial activity). It DOES NOT pass to subsequent landowners.

An easement appurtenant benefits any owners enjoyment and use of the land and DOES attach to the land . It DOES pass to subsequent landowners so long as the new owner has notice.

Any easement may be created by (1) an express agreement (must be in writing if the duration is more than one year); (2) prescription (similar to adverse possession and is gained if the use is continuous, open and notorious, actual, and hostile); (3) implication (arises when the previous use was apparent when purchased and the use was reasonable and necessary for the owners use or enjoyment of the dominant land); OR (4) necessity (arises when a landowner has no way to a viable road except through an adjacent land).


[REAL PROP] • 2 • Easements • Termination of an Easement •

An easement may be terminated by (1) estoppel (when the servient estate owner reasonably relies on, or materially changes his position, due to the easement holders assurance that the easement will no longer be enforced); (2) termination of the necessity that created the easement; (3) involuntary destruction of the servient estate; (4) condemnation of the servient estate; (5) written release ; (6) abandonment (easement holder demonstrates, through physical actions, an intent to never use the easement again); (7) merger (holder of the easement obtains title to the servient estate); OR (8) prescription .


[REAL PROP] • 4 • Real Covenants • •

A real covenant is a non-possessory interest in land that obligates the holder to either do something or refrain from doing something to the land. It differs from equitable servitudes in that the remedy is damages rather than injunctive relief.

To enforce the benefit of a covenant there must be: (1) a writing that satisfies the statute of frauds; (2) intent that the covenant run with the land; (3) vertical privity between succeeding parties (exists when the successor holds the entire interest held by the predecessor); AND (4) the covenant must touch and concern the land (make the land more useful or valuable to the benefitted party).

To enforce the burden of a covenant, all of the above requirements must be met, and additionally (1) there must be horizontal privity between the original parties (exists when the two parties shared some interest in the land independent of the covenant); AND (2) the new owner must have notice of the covenant. Notice may be (a) actual notice; (b) record notice (the covenant is recorded in previous conveyances); OR (c) inquiry notice (an inspection of the land would reveal the covenant).


[REAL PROP] • 3 • Equitable Servitudes • •

Equitable servitudes are covenants that equity will enforce if the burdened estate had notice of the covenants (regardless of whether the covenants run with the land at law). It differs from real covenants in that the remedy is injunctive relief rather than damages. To enforce the benefit of an equitable servitude there must be (1) a writing that satisfies the statute of frauds; (2) intent for the servitude to be enforceable; AND (3) the servitude must touch and concern the land. To enforce the burden of an equitable servitude, all of the above requirements must be met, and additionally, the new owner must have notice of the servitude.


[REAL PROP] • 1 • Equitable Servitudes • Reciprocal Negative Servitude (Common Scheme) •

A reciprocal negative servitude is implied when (1) a developer had a common plan or scheme for all parcels to be developed within the terms of a negative covenant at the time the parcels were purchased ; AND (2) the new owner had notice of the covenant at the time the land was acquired. Reciprocal negative servitudes only apply to negative covenants and equitable servitudes.


[REAL PROP] • 1 • Licenses • •

A license is a not an interest in land, but merely a privilege to use anothers land in a particular way . A license does not need to be in writing. The licensee must act within the scope of the license. A license may be revoked at any time by a manifestation of the licensors intent to do so. However, a licensor may be estopped from revoking a license IF the licensee has invested substantial money and/or labor in reasonable reliance on the continuation of the license.


[REAL PROP] • 2 • Landlord-Tenant Issues • Leases •

Pursuant to a lease, a landlord grants a tenant the exclusive use of his land for a limited period of time , subject to certain terms and conditions. A lease provides the tenant with a present possessory interest in the land, and gives the landlord a future interest in the land.

Three types of leaseholds exist: (1) tenancies for years; (2) periodic tenancies; AND (3) tenancies at will. A tenancy for years is one that lasts for a fixed period of time (can be for less or more than one year). The lease automatically terminates after the period.

A periodic tenancy is one that continues for a specific period (i.e. weekly or monthly) until it is terminated by proper notice from either party. A periodic tenancy may be created (1) expressly ; (2) by implication , if rent is paid at specific periods (i.e. every week); OR (3) by law (when a tenant for years remains after termination of the period, or when a lease is invalid). A periodic tenancy must end at a natural lease period AND requires written notice at least a full period in advance . If the lease period is yearly, six months notice is required.

A tenancy at will is one that continues until either party terminates it. Termination requires giving notice AND reasonable time to quit the premises.


[REAL PROP] • 1 • Landlord-Tenant Issues • Right to Terminate Tenancy for Breach of Covenant •

At common law, covenants between a landlord and tenant were considered independent of each other. Thus, a breach of a covenant gave rise to damages, but NOT the right to terminate the lease. However, under modern law, many covenants are considered dependent, and a party may seek damages AND terminate the lease upon breach of the covenant.


[REAL PROP] • 1 • Landlord-Tenant Issues • Tenant Duties • Duty to Repair

A tenant has a duty to keep the premises in good order and to make ordinary repairs , unless the parties agree otherwise.


[REAL PROP] • 2 • Landlord-Tenant Issues • Tenant Duties • Duty to Pay Rent

A tenants duty to pay rent runs with the land . If a tenant remains on the property and does not pay rent, the landlord may (1) initiate eviction proceedings OR (2) allow the tenant to remain on the property and sue for damages . If the tenant abandons the property and does not pay rent, the landlord must take reasonable steps to mitigate his losses (see Landlord Duties: Duty to Mitigate Damages).


[REAL PROP] • 1 • Landlord-Tenant Issues • Tenant Duties • Estoppel

Generally, a party will be estopped from asserting a claim where he acquiesced to the violation. Therefore, a landlord who accepted rent from a subtenant without objection, is estopped from later asserting a claim for wrongful sublease. The same applies if the landlord accepts late rent payments.


[REAL PROP] • 1 • Landlord-Tenant Issues • Landlord Duties • Duty to Repair

The landlord has a duty to repair common areas . The landlord also has a duty to warn the tenant of any latent defects that create a risk of serious harm that the landlord knows of (or should know of).


[REAL PROP] • 3 • Landlord-Tenant Issues • Landlord Duties • Implied Warranty of Habitability

A warranty of habitability is implied in every residential lease . The implied warranty of habitability requires that the landlord provide a place to live (apartment, home) that is habitable . A premise is deemed habitable if it is reasonably suitable for human needs (must consider the local housing or public safety code for specifics).

Upon a breach of the warranty of habitability, the tenant may (1) move out and terminate the lease; (2) withhold or reduce the rent ; (3) repair the issue and deduct the cost from the rent; OR (4) remain on the premises and sue for damages.


[REAL PROP] • 2 • Landlord-Tenant Issues • Landlord Duties • Duty to Mitigate Damages

Damages will not be awarded if they could have been avoided . If a landlord seeks damages for a tenants abandonment and failure to pay rent, the landlord must show that he took reasonable steps to mitigate his losses . These include attempting to lease the property to another tenant. The landlord may sue for the difference between the original rent payments and the rent payments under the new lease, as well as any incidental damages .


[REAL PROP] • 4 • Landlord-Tenant Issues • Landlord Duties • Constructive Eviction

Every lease includes an implied covenant of quiet enjoyment, which prevents a landlord from interfering with the tenants quiet enjoyment and possession of the property . This covenant is breached if the tenant is constructively evicted. Construction evictions occurs when the landlord does something or fails to do something he is legally obligated to do AND the property becomes uninhabitable . The tenant may terminate the lease and seek damages upon being constructively evicted if (1) the landlord caused the property to become uninhabitable; (2) the tenant gave the landlord notice of the condition; (3) the landlord failed to remedy the condition; AND (4) the tenant moved out within a reasonable time .


[REAL PROP] • 5 • Landlord-Tenant Issues • Right to Assign and Sublease •

A lease may be freely assigned and sublet , unless a provision in the lease states otherwise. An assignment or sublease can never be for a longer period of time than the lessor has remaining in his term.


[REAL PROP] • 4 • Landlord-Tenant Issues • Lease Assignments •

An assignment occurs where a tenant transfers ALL of his remaining interest in a lease. The assignee is liable to the landlord for rent and all other covenants that run with the land because there is privity of estate with the landlord. The original tenant remains liable to the landlord for rent because there is privity of contract with the landlord.


[REAL PROP] • 3 • Landlord-Tenant Issues • Subleases •

A sublease occurs where a tenant transfers only some of his remaining interest in a lease. The sublessee is NOT liable to the landlord for rent or other covenants that run with the land because there is no privity of estate with the landlord. The sublessee may enforce covenants made by the original tenant , but not covenants made by the landlord under the original lease. The original tenant remains liable to the landlord for rent because there is privity of contract with the landlord.


[REAL PROP] • 1 • Landlord-Tenant Issues • Fixtures •

A fixture is an item that has been affixed to the land/dwelling so that it is no longer personal property, but instead becomes part of the land . Whether an item is a fixture is determined by the objective intent of the party who attached the item. Consider: (1) the nature of the item; (2) the manner in which it is attached; (3) the damage that would result if the item were removed; AND (4) the extent to which the item is adapted to the property (i.e. an installed custom window).

Under the trade fixture exception , an item that is attached to the property for use in the tenants trade or business is NOT a fixture UNLESS its removal would cause substantial damage to the property. An item that is not a fixture may become one IF it is not removed before the end of the lease term.


[REAL PROP] • 4 • Joint Tenancy • Formation •

A joint tenancy is created when the four unities are present : (1) the unity of time (all interests were received at the same time); (2) unity of title (all interests were acquired by the same instrument); (3) unity of interest (all ownership interests are equal); AND (4) unity of possession (all interests have equal rights of possession). Additionally, there must be clear express intent to create a joint tenancy, which may be satisfied by including the terms joint tenants with right of survivorship. A right of survivorship means that when one joint tenant dies that joint tenants interest in the land is automatically transferred the other joint tenant(s).


[REAL PROP] • 2 • Joint Tenancy • Severance •

Generally, when one joint tenant unilaterally transfers his ownership interest in the property, joint tenancy is severed and the tenants hold the property as tenants in common .

When a joint tenant conveys her interest in a joint tenancy to a third-party, that party takes the property as a tenant in common. If there are only two joint tenants, the joint tenancy is severed . However, if there are more than two joint tenants, joint tenancy remains, but only among the other joint tenants.

When a joint tenant takes out a mortgage on her interest, the mortgages effect on the joint tenancy will depend on the jurisdiction. In a lien theory jurisdiction , if a joint tenant takes out a mortgage on her interest in the land, the mortgage will NOT sever the joint tenancy . However in a title theory jurisdiction , the mortgage will sever the joint tenancy , and the tenants will then hold the property as tenants in common.


[REAL PROP] • 2 • Co-Tenants • Sharing of Costs and Rents •

All co-tenants (whether in joint tenancy or tenants in common) must contribute their fair share to taxes , mortgages paid on the property, and necessary repairs . Additionally, they are entitled to their fair share of any rents collected from third parties.


[REAL PROP] • 1 • Adverse Possession • •

A person may acquire title to property through adverse possession if the possession of the property is (1) continuous for the statutory period; (2) open and notorious (possess the property as the true owner would); (3 ) exclusive ; (4) actual ; AND (5) hostile (without the true owners consent).


[REAL PROP] • 1 • Land Conveyances • Contracts for the Sale of Land •

A valid contract for the sale of land must satisfy the statute of frauds; the contract must be in a writing that (1) describes the property; (2) identifies the parties involved; (3) contains the purchase price ; AND (4) is signed by the grantor/grantee (depending on whom the contract is being enforced against).


[REAL PROP] • 1 • Land Conveyances • Marketable Title •

If a seller of land cannot provide marketable title (after being notified of a defect and given reasonable time to cure), the buyer may (1) rescind the contract; (2) sue for damages for breach; OR (3) obtain specific performance with an abatement of the purchase price.

A title is unmarketable if it contains a substantial defect . A substantial defect is one that is likely to harm the buyer in the future (i.e. defects in the chain of title or possible encumbrances). If a buyer continues with the closing of the contract, the seller is no longer liable for marketable title.


[REAL PROP] • 1 • Land Conveyances • Statute of Frauds •

A transfer of an interest in land must satisfy the statute of frauds. A deed must be in writing AND be signed by the grantor .


[REAL PROP] • 2 • Land Conveyances • Deed Requirements •

Land may be conveyed without a contract when there is (1) intent by the grantor to convey the property to the grantee; (2) delivery of the deed; AND (3) acceptance by the grantee. A valid deed must: (1) be in a writing that satisfies the statute of frauds; (2) identify the land and parties involved; AND (3) indicate the grantors intent to convey the land. Delivery is determined by the grantors intent for the deed to have a present operative effect ; it DOES NOT require actual physical delivery. Intent to convey is presumed upon the recording of a deed . Intent will NOT be found if the grantor expressly reserves the right to revoke the deed OR gives instructions to only deliver the deed upon the grantors death . When a deed is unconditional on its face and given to a grantee, additional oral conditions are NOT valid. However, if the same deed is instead given to a third party, any additional conditions would create a conditional delivery .