Terminology Flashcards
Adverse Possession
When a person comes in and possesses another’s land, uses it, and the land eventually becomes theirs. If an owner does not, within the statutory period, take action to eject a possessor who claims adversely to the owner, the title vests in the possessor.
Restrictions/Limitations:
* Minority – Must knowingly intend to claim title.
* Majority – Adversity must be objective, not subjective.
–Cannot adversely claim from the sovereign.
–Claim clock doesn’t start for minors, morons, and prisoners.
–Cannot adversely claim back from someone you sold to.
Requirements of Adverse Possession
ONECARS
Open – was the assertion of the claim visible?
Notorious – was there notice given, did people know?
Exclusive – did I exercise dominion?
Continuous – regular and interrupted
Adverse – needs to be adverse to someone’s interest
Right – was I acting like it was mine? did I pay taxes?
Statutory Period – state law
Tacking
Possession passes from one adverse possessor to another, as long as there is continuity among the parties…i.e. inheritance, spouses, partners, children, shared interest. Tacking is not permitted where one party has ousted another. Clock continues ticking even if property is sold by adverse possessor
Privity
A relationship between parties, conveyance from one party to another. The parties must have continuity of interest and can transfer interest, such as in tacking or covenants.
Vertical Privity
Refers to those who subsequently obtain property subject to the covenant
EX: Tenant 1 to tenant 2; first landlord to the person they sold the property who, thus, becomes the second landlord
Horizontal Privity
Tenant to Landlord
Seisin
A proof of deed (ownership) entailing
(1) possession and
(2) a claim of ownership
Easement
A non-possessory, non-exclusive, enforceable INTEREST in using the land of another (like ONECARS, but no E). An easement is ADVERSE (unlike a license), but can be used as a defense in a trespass action. However, an easement can be terminated by stated conditions, unity of ownership(same owner and servient estate longer in duration), release (both parties stated as per statute of frauds), abandonment (oral expression and long period of non-use the minimum), condemnation, prescription (adverse) possession. A necessary easement will cease when the necessity is gone.
Positive Prescription of Easements
The creation of a right through a lapse of time (ex…adverse possession)
Negative Prescription of Easements
The loss or destruction of a right by lapse in time (ex…statute of limitations)
Dominant Estate
The land for whose benefit the easement is created
Servient Estate
The land that is burdened, or used, by the easement
Estate
An interest in land that:
Is or may become possessory;
Is measured in terms of duration
Rent
Periodical compensation, in money or otherwise, agreed to be given to by the tenant to the landlord for the use of realty, the payment of which may be enforced like any other demand. In exchange for paying rent, the tenant is allowed:
1) Possession
2) Quiet Enjoyment
Quiet Enjoyment
The right to enjoy use or possession without interference
Constructive Eviction
The tenant’s use or enjoyment of property has been substantially impaired (as if the landlord threw them out). Tenant is not entitled to stop paying rent unless he abandons premises.
Duties of Tenant:
1) Lease is silent:
a) Pay rent
b) Tenant responsibility for the condition of the property. Not to commit waste.
2) Lease Covenant by the tenant to repair:
a) Tenants are liable to everything if someone burns the house down. Tenants insurer of the property. EXCEPTION: ordinary wear and tear.
Landlord Remedies:
1) Tenant does not pay
a) Can sue originally for rent in arrears.
b) Now can sue for both past and future rent.
2) Abandons leasehold
a) Can treat it as an offer of surrender and can retake property as tenancy has ended.
b) Landlord can re-rent property on tenants account. The landlord is mitigating damages.
Total Eviction
Direct physical invasion by the landlord. Total eviction.
Partial Eviction
Landlord keeps tenant off part of the property. Changes the lock on the basement door. Basement has now been taken back, tenant can stay on the rest and does not have to pay any rent. Partial eviction by someone other than the landlord: rent is apportioned by the amount that is taken away.
Defenses for not paying rent:
a) No defense, if the reason has nothing to do with the landlord. (Paradine)
b) When you are deprived of your enjoyment by the landlord himself, if you are deprived of your moral, you can not pay the rent. (Dyett)
c) It is rare to be constructively evicted. There must be substantial interference with the use and enjoyment of the property. It must come from the landlord and you have to actually leave. (Jacobs)
d) Where tenant pays for improvements they cannot set off against the rent. (Tuttle)
Examples of “Bad Old Landlord-Tenant Law” (ABRAHAM)
A. No implied landlord promise as to the condition of the premises at the outset of the tenancy
B. No implied landlord obligation to maintain the condition of the premises during the tenancy
C. Independence of covenants: even where the landlord has obligations, they cannot be pleaded as a defense to a major tenant violation such as non-payment of rent. The tenant cannot stop paying rent: he must bring a separate claim
D. Summary process: eviction for non-payment of rent or for holding over gets court priority, sometimes in a specialized court.
E. Forcible entry and detainer: landlord can enter property and retain possession until rent is paid
Implied Warranty of Habitability
Landlord is responsible for factors that make premises unlivable. The tenant’s obligation to pay rent is dependent on landlord’s performance of his obligation (to keep premises habitable).
2 Step Javins Test:
1) Did the alleged violations exist during the period of time for which the past-due rent is claimed.
2) If so, what portion (if any part, or all) of the tenant’s obligation to pay rent was suspended by landlord’s breach of contract.
Steps in buying a house:
- Broker
- Make an offer
- Acceptance of the offer
- K = purchase and sale agreement.
* The legal title remains with the seller until the deed is transferred at the closing; the equitable title moves immediately to the purchasers. - Mortgage or deed of trust (basically a fee simple condition subsequent)
- Title from recording office to ensure that owner does own what he purports to own
- Closing: the deed changes hands from old to new owner
- The deed is recorded in the county clerk’s office, and then describes the extent of the commitments, called warranties, that the old owner makes to the new owners
Three types of warranties
- Warrant Generally: seller responsibility for any defects in the title
- Warrant Specially: seller promises that there are no defects that have arisen during his ownership, but takes no responsibility for competing title claims that owe their origin to some predecessor in the chain of title.
- Quitclaim Deed: seller transfers ownership but makes no promises as to the extent of, or possible exceptions to, his rights. “What you see is what you get!”
Equity
The interest in real estate that the buyer has after paying the mortgage for a period of time. The share that has become the buyers.
Mortgage Title Theory
Because the mortgage generally looks like a conveyance of the legal title, some states purport to treat the mortgage as indeed holding legal title.
Mortgage Lien Theory
A mortgage merely gives the mortgagee security for repayment.
* Today nearly all states treat the mortgage as a lien
Strict Foreclosure
Courts and statutes set a fixed period after default during which the mortgagor could redeem but after which he was barred.
