Real Property Rules Flashcards
(140 cards)
1
Q
Joint Tenancy
A
- Two or or more people own with the right of survivorship.
- Freely transferable inter vivos
- Not descendible or devisable
2
Q
Common Law Joint Tenancy
A
- Requires four unities: Time, title, identical interests, with right to possess the whole
3
Q
Modern Joint Tenancy
A
- Grantor must clearly express the right of survivorship. “To A and B as joint tenants with the right of survivorship”
4
Q
Severance of a Joint Tenancy
A
- A joint tenancy may be severed by sale or transfer which destroys the joint tenancy. If more than two joint-tenants, does not sever with the non-transferring joint tenants.
5
Q
Three Types of Partition
A
- By voluntary agreement
- Judicial action that results in a partition in kind
- Judicial action that results in a forced sale
6
Q
Transactions that don’t sever joint tenancy
A
- Mortgage (lien theory) state
- Death of one joint tenant through the unlawful killing of the other will change to a tenancy in common
7
Q
Tenancy by the Entirety
A
- Similar to a joint tenancy but can only be between married partners
- Not freely transferable
- Severed by death, mutual agreement, or execution by a joint creditor
8
Q
Tenancy in Common
A
- A concurrent estate with no right of survivorship
- Presumption if language doesn’t specifically create a joint tenancy
- Each tenant owns an individual part w/ a right to possess the whole
- Each interest is devisable, descendible, and alienable
9
Q
Rights of Co-Tenants
A
- Right to possess the whole
- Right to retain profits for their exclusive use of the property
- A co-tenant must get any share of rental income from a third-party
10
Q
Duties of Co-Tenants
A
- Carrying costs
- Repairs
- Improvements
- Not to conduct waste
11
Q
Types of Waste
A
- Voluntary Waste (willful destruction)
- Permissive Waste (neglect)
- Ameliorative Waste (unilateral change that increases value)
12
Q
Ouster
A
- When one co-tenant wrongfully excludes another co-tenant from possession of the whole or any part
13
Q
The Tenancy for Years
A
A lease for fixed, determined period of time. Can be for one week or 50 years
- Terminates automatically at its end date
- Created by written leases. Greater than one year must be in writing for SOF
14
Q
The Periodic Tenancy
A
- A leases which continues for successive intervals until either the landlord or tenant gives proper notice of termination
- Created expressly “year to year”, “month to month”.
15
Q
Periodic Tenancy by Implication
A
- Land is leased with no mention of duration, but rent is paid in set intervals
- An oral term of years in violation of the SOF
- A residential lease, if a landlord elects to hold over a tenant who has wrongfully stayed on past the lease
- terminated by notice that is the same length of the period
16
Q
The Tenancy at Will
A
- No fixed period of duration - it’s terminable at the will of either the landlord or the tenant
- “to T for as long as L or T desires”
- Must be created by express agreement that lease may be terminated ay any time
- If only landlord has right to terminate, tenant will as well. If only tenant, then court will not imply for landlord
17
Q
Tenancy at Sufferance
A
- Created when a tenant wrongfully holds over past the expiration of the lease
- lasts until the landlord evicts the tenant or elects to hold the tenant to a new tenancy.
18
Q
The Hold-Over Doctrine
A
- If the tenant continues in possession after their right to possession has ended, the landlord may: (1) evict the tenant, or (2) bind the tenant to a new periodic tenancy
- Commercial tenants may be held to a new year-to-year periodic tenancy if original lease was for one year or more
- Residential tenants held a new month-to-month tenancy, regardless of the original term
19
Q
Tenant’s Duty to Repair
A
- Obligation to Maintain Premises (routine repairs)
- Tenant must not commit waste
20
Q
Exception to Ameliorative Waste
A
- A long-term tenant and the change reflects changes in the neighborhood
21
Q
Covenants to Repair
A
- A residential tenant covenants to repair, the landlord usually remains obligated to repair under the Implied Warranty of Habitability
- Nonresidential covenant to repair is enforceable
- frequently excludes ordinary wear and tear
22
Q
Tenant’s Duty to Pay Rent
A
- If a tenant is on the premises and fails to pay rent, landlord can evict and still pay rent
- Landlord may not self-help though to get rent must go through the court
23
Q
Tenant Breaches but Out of Possession Landlord Options
A
- Surrender: the landlord could choose to treat the tenant’s abandonment as an implicit offer of surrender, which the landlord accepts, ending the lease
- Ignore the abandonment and hold the tenant responsible for the unpaid rent
- Re-let the premises on the wrongdoer-tenant’s behalf, and hold the wrongdoer-tenant liable for any deficiency (majority rule)
24
Q
Landlord Duty to Deliver Possession
A
- Requires that the landlord put the tenant in actual physical possession of the premises at the beginning of the lease-hold term
25
Implied Covenant of Quiet Enjoyments
- A tenant has a right to quiet use and enjoyment of the premises, without interference from the landlord or a paramount title holder
26
Actual Eviction
- Occurs when the landlord, a paramount title holder, or a hold-over tenant excludes the tenant from the leased premises. Terminates the obligation to pay rent.
27
Partial Eviction
- When the tenant is physically excluded from only part of the leased premises
- By the landlord relieves the tenant of obligation pay rent
- By a paramount title holder, will relief tenant to pay for the reasonable use of that space
28
Constructive Eviction
- When the landlord's breach of duty renders the premises unsuitable for occupancy
- Tenant may terminate the lease and may also seek damages
29
Element for Constructive Eviction (SING)
- Substantial Interference
- Notice
- Goodbye
30
Acts of Other Tenants
- Generally landlord is not liable except:
- a landlord has a duty to abate a nuisance on site
- a landlord must control common areas
31
The Implied Warranty of Habitability
- Applies to residential leases and not to commercial leases
- Warranty is nonwaivable
- Premises must be fit for basic human habitation
32
Tenant's Entitlement when IWH is Breached
- Move out and terminate the lease
- Repair and deduct
- Reduce rent or withhold all rent until the court determines fair rental value
- Remain in possession, pay full rent, and seek money damages
33
Reasonable Accommodations for Disability
- Landlords must permit disabled tenants to make reasonable modifications to existing premises to accommodate their disability at tenant's expense
34
Assignment
- A transfer of the entire remaining term of a lease
- Assignee stands in the shoes of original tenant, them and the landlord are in privity of estate and liable for each other and covenants that "run with the land"
- Original tenant remains liable under privity of contract
35
Covenants that Run with the Land
- A covenant runs with the land if the original parties to the lease intend the covenant to touch and concern the land. benefits the landlord and burdens the tenant
36
Failure to Pay Rent in an Assignment
- landlord can hold assignee or assignor responsible for paying rent
37
Sublease
- A sublessee is the tenant of the original lessee and usually pays rent to the original lessee, who then pays the landlord
- Sublessee not responsible to the landlord because not in privity
- Cannot enforce any covenants against landlord, and landlord cannot enforce rent against sublessee
38
Covenants against Assignment or Sublease
- A landlord can prohibit a tenant from assigning or subleasing without landlord's written approval
- Waived if knew of assignment and didn't say something or consents to one, can no longer consent
- Lease covenants restricting assignment and sublease are strictly construed against the landlord. Landlord may terminate the lease but the transfer is not void
39
Landlord's Tort Liability Common Law
- Let the tenant beware
- No duty to make the premises safe
40
Exceptions to Caveat Lesseee
- Common Areas
- Latent Defects
- Assumption of repairs
- Public use rule
- Short-term lease of furnished dwelling
41
Modern Landlord Tort Liability
- Many courts hold that a landlord owes a general duty of reasonable care toward residential tenants
- Will be held liable for injuries in tort resulting from ordinary negligence if the landlord had notice of a defect and an opp. to repair it
42
- Defects Arising after Tenant Takes Possession
- A landlord generally is held to have notice of defects existing before the tenant took possession but is not liable in tort for defects arising after the tenant takes possession unless the landlord knew or should have known
43
Easement
- A grant of a nonpossessory property interest that entitles its holder to some form of use or enjoyment of another's land
44
Affirmative Easement
- The right to go onto and do something on the servient land
45
Negative Easement
- Entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible
- Can only be created expressly
Only allowed for four categories:
- light
- air
- support
- stream
46
Easement Appurtenant
- Benefits the holder in his physical use or enjoyment of his own land
- Two parcels of land must be involved
- A dominant tenement, which derives the benefit
- A servient tenement, which bears the burden
- Passes automatically with transfers of the dominant tenement
- Passes with the servient tenement unless new owner is a BFP without notice of the easement
47
Easement in Gross
- If it confers upon its holder only some personal or pecuniary advantage that is not related to their use of enjoyment of their land
- the servient land is burdened
- Not transferrable unless it is for commercial purposes
48
Easement by Prescription
- Analogous to Adverse Possession
- Elements for a prescriptive easement are:
- Continuous and uninterrupted use for the given statute's period
- Open and Notorious Use
- Actual use, no need for exclusivity
- Hostile use (w/o owners consent
49
Easement Implied
- Created by operation of law and implied from preexisting use
50
Easement by Necessity
- An easement by necessity will be implied when a landowner conveys a portion of her land with no way out except over the grantor's remaining land.
- Servient parcel has the right to locate an easement
51
Easement by Grant
- Must be memorialized in writing and signed by the holder of the servient tenement unless it's less than one year
52
Easement by Reservation
- Arises when a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose
- An attempt to reserve an easement for anyone else is void
53
Scope of Easement
- Determined by the terms of the grant or the conditions that created it
- Must be reasonable if not specified
- Remedy for overuse is injunction and not termination
54
Ways to Terminate Easement (END CRAMP)
- Estoppel
- Necessity (as soon as the necessity ends)
- Destruction
- Condemnation
- Release
- Abandonment
- Merger
55
Estoppel Termination of Easement
- An oral expression of an intent to abandon an easement and the servient owner relies on it
56
The License
- Not an interest in land, merely a privilege revocable at the will of the licensor
- Writing not needed
- Ticket
- Neighbors talking by the fence (oral easement by a license)
57
Covenants
- Written promise to do not do something related to land
- Contractual limitation or promise regarding land
- Generally run with the land at law
- Looking for money damages and not an injunction
58
Negative Covenants
- Covenants can be negative, known as restrictive covenants
- A promise to refrain from doing something related to land
59
Affirmative Covenants
- Covenants can be affirmative
- A promise to do something related to land
"promise to maintain shared fences"
60
Requirements for Burden to Run with the Land
- Writing
- Intent
- Touch and Concern
- Horizontal and Vertical Privity
- Notice
61
Horizontal Privity
- Nexus between the original promising parties
- Must have been in a grantor-grantee, landlord-tenant, mortgagor-mortgagee. Shared some interest in the land independent of the covenant
62
Vertical Privity
- Nexus between successor in interest and the originally covenanting party
- Contract, devise, or descent
63
Requirements for Benefit to Run
- Writing
- Intent
- Touch and Concern Land
- Vertical Privity
64
How to Terminate Covenants and ES
- A written release
- The merger of the benefited and burdened estates
- the condemnation of the burdened property
65
Equitable Servitude
- A promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the subsequent purchase is a BFP
- Damages are injunction
66
Creation of ES
- Writing
- Intent
- Touch and Concern
- Notice
67
Implied ES (Common Scheme Doctrine)
- Under this doctrine, the court will imply a reciprocal negative servitude to hold the unrestricted lot holder to the promise
- Two Elements: When sales began, subdivider had general scheme of residential development which included D's lot; the defendant lot-holder had notice of the promise contained in prior deeds
68
Types of Notice
- Actual
- Inquiry
- Record
69
Defenses to Enforcement of ES
- Neighborhood conditions have changed
- Unclean hands
- Estoppel
- Acquiescence
- Laches
70
Elements of Adverse Possession
- Continuous (statute runs when the true owner could bring suit) (will not run against someone with a disability)
- Open and Notorious
- Actual and Exclusive
- Hostile
71
Tacking
- One adverse possessor can tack on to his time with the land with his predecessor's time. Must be a non-hostile nexus, cannot be by ouster.
72
Two Step Process of Sale of Real Estate
Step 1: Land Contract (conveys equitable title)
Step 2: Deed (passes legal title and governs)
73
Land Sale Contract SOF Requirements
- Identify the parties
- Describe the property, and
- Include the price or a means of determining the price
74
Inaccurate Description
- If what was described is too much then buyer can get specific performance w/ a pro-rate reduction in price
75
Exception to SOF - Part Performance
- Allows a buyer to enforce an oral real estate contract by specific performance if: (1) the oral contract is certain and clear, and (2) the acts of partial performance clearly prove the existence of a contract
76
Proving the existence three factors
- Must satisfy two of the three:
- Buyer has taken possession of the property
- Buyer has paid the purchase price or a significant portion of the purchase price
- Buyer has made substantial improvements to the premises
77
Doctrine of Equitable Conversion
- Once the contract is signed, equity regard the buyer as the owner of the real property
- Buyer bears the risk of loss during the conversion period
78
Two Promises Implied in Every Land Sale Contract
- Seller will provide marketable title
- Seller will not Make False Statements of Material Fact
79
Defects in Record Chain of Title
- Adverse Possession
- Encumbrances
- Zoning Violations
- Future Interests Held by Unborn or Unascertained Parties
80
When must title be marketable?
- On the day of closing
81
Remedy if title not marketable
- The buyer must notify the seller that title is unmarketable and give the seller reasonable time to cure the defects
- Remedies include rescission, damages, specific performance with abatement, and a quiet title suit.
82
Failure to Disclose Latent Material Defects
- The seller must know or have reason to know of the defect;
- the seller must realize that the buyer is unlikely to discover the defect; and
- the defect must be serious enough that the buyer would probably reconsider the purchase
83
Disclaimers of Liability
- Disclaimer must identify specific types of defects if it is going to be upheld
84
Caveat Emptor
- let the buyer beware
- no implied warranties of fitness or habitability
Exception: new home construction, negligence of builder
85
Time of Performance
- Courts presume that time is not "of the essence" in real estate contracts unless the contract so states, the circumstances indicate that was the parties intent, or one party gives the other notice that time is of the essence
86
Tender of Performance
- Parties obligation to pay and the seller's obligation to convey are concurrent conditions
- neither party is in breach until the other tenders performance
- Party is excused if the other party has repudiated the contract or it is impossible
87
Remedies for Breach of Sales Contract
- Entitled to damages or because land is unique, specific performance
- can get liquidated damages if it was stored in earnest money
88
Deed
- Contract merges with the deed and the deed is the controlling document
89
Lawful Execution of a Deed
- A writing signed by the grantor
- An unambiguous description of the land
- Identification of the parties by name or description
- Words of intent to transfer, such as "grant"
90
The Delivery Requirement of a Deed
- Can be satisfied when the grantor physically or manually transfers the deed to the grantee.
- The standard for delivery is a legal standard is a test solely of present intent
- Acceptance is presumed but the grantee expressly rejects the deed, the deed is ineffective to pass title
91
Delivery Presumed If:
- Handed to the grantee,
- Acknowledged by the grantor in front of a notary, or
- recorded
92
Quitclaim Deed
- Contains no warranties. Conveys only what I have
93
General Warranty Deed
- Warrants against all defects in title, including those attributable to grantor's predecessors
- Contains all six covenants
94
Present Covenants
- Breached at the time the deed is delivered
- The covenant of seisin (grantor owns)
- The covenant of the right to convey (has power to transfer)
- The covenant against encumbrances (no servitudes/liens)
95
Future Covenants
- Future covenant is not breached, if ever, until the grantee is disturbed in possession
- The covenant for quiet enjoyment
- the covenant of warranty
- the covenant for further assurances: Grantor promises to do whatever is needed to perfect grantee's title if it later turns out to be imperfect.
96
The Special Warranty Deed
- Contains the same covenants as the general warranty deed, but here the grantor promises only on behalf of himself (not predecessors in interest)
97
Statutory Special Warranty Deed
- Statutes provide for a deed that creates by implication two limited assurances against acts of the grantor: (1) that the grantor has not conveyed the same estate or any interest therein to anyone other than the grantee and (2) that the estate is free from encumbrances made by the grantor
98
Void Deed
- Set aside by the court even if the property has passed to a bona fide purchaser
99
Voidable Deed
- Will be set aside only if the property has not passed to a bona fide purchaser
100
Examples of Void Deeds
- Forged deeds
- No delivery
- Dead or nonexistent grantee
- Deed obtained by fraud in factum
101
Voidable Deeds
- Executed by Minor
- Executed by one without mental capacity
- Deed obtained by fraud in inducement
- Deed obtained by duress or undue influece
- Deed obtained by mistake
- Deed through breach of fiduciary duty
102
Fraudulent Conveyances
- Conveyance with intent to hinder, delay, or defraud any creditor of the grantor
- conveyance made without receiving a reasonably equivalent value in exchange for the transfer
103
Conveyance by Gift and Will
A deed may validly convey real property by inter vivos gift so long as there is: (1) donative intent, (2) delivery, (3) acceptance.
104
Ademption
- If property is specifically devised or bequeathed in the testator's will, but the testator no longer owns it at the time of death, the gift fails
105
Abatement
- If the estate assets are not sufficient to pay creditors of the estate the gifts are reduced in this order: (1) property passing by intestacy, (2) the residuary estate, (3) general legacies, (4) specific devises and bequests
106
Common Law Recording Rule
- First in time, first in right
107
Race Statute
A conveyance of an estate in land shall not be valid against a subsequent purchaser for value unless the conveyance is recorded
"race to record"
108
Bonafide Purchaser
- A purchaser for value who takes without notice
109
Value
- Donee, devisees, and heirs do not take for value
- Diminished value will still be considered consideration
110
Notice
- Actual Notice
- Inquiry Notice
- Record Notice - Chain of Title
111
Notice Statute
- A conveyance of an interest in land, other than a lease for less than one year, shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded
- Last BFP to enter wins
112
Race-Notice Statute
- Any conveyance of an interest in land, other than a lease for less than year, shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded
113
Chain of Title
To give record notice to subsequent takers, the deed must be recorded properly, within the chain of title
114
Three Chain of Title Issues
- The Shelter Rule
- Wild Deed
- Estoppel by Deed
115
Shelter Rule
- Anyone who takes from a BFP will prevail against any interest the BFP would have prevailed against
116
Wild Deed
- A recorded deed that is not connected to the chain of title. Not discoverable by a subsequent purchaser
117
Estoppel by Deed
- One who conveys realty in which he has no interest, is estopped from denying the validity of that conveyance if he subsequently acquires the title that he had previously purported to transfer
118
Purchase Money Mortgage
- The lender (mortgagee) takes as collateral a security interest in the very real estate that its loan enables the debtor to acquire
119
Two Elements of Mortgage
- Debt (note)
- Lien in land to secure debt (mortgage)
120
Terms of Mortgage Writing
- Mortgage Deed
- Deed of Trust
- Sale Lease Back
- Sec. Interest in Land
121
Transfer by Mortgagee
- Can transfer their interest by indorsing the note and delivering it to the transferee, or executing a separate document of assignment
122
Transfer by Mortgagor
- If mortgagor takes subject to the mortgage they have no personal liability, foreclosure only recourse
- if mortgagor takes assuming the mortgage then they can be held personally liable as primary
123
Due on Sale Clauses
- Allows the lender to demand full payment of the loan if the mortgagor transfers any interest in the property without the lender's consent
124
Effect of Recording Acts on Mortgages
- All recording statues apply to mortgages
- A subsequent buyer takes subject to a properly recorded lien
125
Foreclosure
- Must foreclose by proper judicial proceeding. At the sale, the land is sold
126
Proceeds of Foreclosure less than Amount Owed
- Deficiency action against the debtor
127
What to do if Surplus from foreclosure
- junior liens are paid off in order of their priority. Any remaining surplus goes to the debtor
128
Junior Interests
- Foreclosure terminates interest junior the the mortgage being foreclosed but does not affect senior interests
- Junior lienholders will be paid in descending order
129
Necessary Parties for Foreclosure
- All junior lien holders and debtors
130
Senior Interests
- Foreclosure does not affect any interest senior to the mortgage being foreclosed
131
Priorities of Creditors
- First in time, first in right
- PMM has first priority in a parcel financed if recorded properly
132
Subordination Agreements
- By private agreement, a senior creditor may agree to subordinate its priority to a junior creditor
133
Redemption in Equity
- Gives the debtor the right to redeem the land before it is sold.
- Must pay off the mortgage missed payments, interests, and costs
- If acceleration clause, must pay full mortgage, interest and cost
134
Statutory Right of Redemption
- Many states give the mortgagor a statutory right to redeem for some fixed period after the foreclosure sale has occurred.
- Must pay the foreclosure price
135
Cumulative Zoning Ordinance
- A cumulative zoning ordinance creates a hierarchy of uses of land. Land that is zoned for a particular use may be used for the stated purpose and any higher use
136
Cumulative Zoning Hierarchy
- Single-Family Home (highest)
- Two-family home
- Apartment building
- Strip Mall
- Factory (lowest)
137
Noncumulative zoning ordinance
- Land may be used only for the purpose for which it is zoned
138
Riparian Doctrine
- Water belongs to those who own the land bordering the watercourse
139
Riparian Doctrine Reasonable Use Theory
- All riparians share the right of "reasonable use" of the water
- To determine reasonable use they look at alteration of flow, purpose of use, pollution, extent of use, destination of water taken, conduct that may give rise to litigation
140
Right to Exclude Remedies
- Trespass
- Private Nuisance
- Continuing Trespass
- Ejectment or unlawful detainer
