Tidbits Flashcards
(107 cards)
1
Q
If you have superior property rights over someone, what can you do to exclude them from your property?
A
Self help or the legal process
2
Q
There is ____ _______ for intentional trespass of real property
A
strict liability
3
Q
There is no liability for _____ _____ property unless the property is damages
A
tangible personal
4
Q
What is replevin?
A
suing to get property back
5
Q
What is trover?
A
suing for the value of the property
6
Q
Owners of public accommodations may not exclude certain individuals while ________________, but they can govern the property by general rules of application (shoes or shirt)
A
simultaneously inviting the public to be on the property.
7
Q
majority approach on public accommodation
A
allow landowners to govern things like speech on premises without finding any Constitutional violation
8
Q
What are the three main types of leases?
A
term of years, periodic tenancy, and tenancy at will
9
Q
term of years lease
A
Bounded in time by a specific ending date. The leasehold automatically terminates at the date/time specified.
10
Q
What is the following an example of?
“one year lease” or a lease “ending December 31, 2016.”
A
term of years lease
11
Q
Is notice needed to terminate a term of years lease?
A
no
12
Q
periodic tenancy
A
Automatically renewing terms of month-to-month (or week-to-week or year-to-year, or whatever).
13
Q
Is notice needed to terminate a periodic tenancy?
A
Yes
14
Q
What is sufficient notice for termination of a periodic tenancy?
A
Notice is effective 30 days after it is given in a month-to-month lease (or 6-months after it is given in a year-to-year lease). Theoretically, one needs to give notice equal to the length of the term, but under modern statutes terms shorter than 1 month still require 30 days notice and 6-months notice is sufficient for a year-to-year lease. If a new term starts before notice is effective, it will completely run before it terminates. Thus, if notice of termination is given April 4 on a month-to-month lease starting at the first of each month, the lease will renew for May on May 1 and then terminate on May 31.
15
Q
If a court isn’t sure of what type of lease is intended, what is the default?
A
periodic tenancy
16
Q
What type of lease do courts consider when there is an absence of any written agreement upon periodic rent payments-with the period of payments being the implied renewing term?
A
periodic tenancy
17
Q
When a tenant overstays a term of years lease and the landlord accepts monthly rental payments, courts consider this a ____ ____
A
periodic tenancy
18
Q
tenancy at will
A
lasts until either party terminates
19
Q
What is the difference between a tenancy at will and a periodic tenancy?
A
both needs 30 day notice of termination, but a periodic tenancy requires another whole full term after notice, while tenancy at will requires 30 days no matter where you are in the term. For example, if you gave notice on April 4th in a periodic tenancy, the termination would be effective May 31. In a tenancy at will it would be effective May 4.
20
Q
What is sufficient notice for termination for a tenancy at will?
A
30 days
21
Q
leasehold that is merely the continued occupancy of a tenant beyond the lease term
A
tenancy at sufferance (This is usually a very short-term tenancy because if a LL starts accepting rent, it will be deemed a periodic tenancy, and otherwise a LL usually evicts the stay-over tenant. Importantly, however, a landlord cannot use self help to evict a “tenant at sufferance” because that tenant did not trespass - he or she only stayed too long.)
22
Q
Constructive eviction
A
When the landlord causes or allows something to significantly adversely impact a tenant’s use of the premises and the tenant, after notice and failure of the landlord to cure, actually vacates the premises.
23
Q
Does constructive eviction allow a tenant to not pay rent?
A
yes
24
Q
How is IWH different from constructive eviction?
A
(a) a tenant need not leave to obtain remedies (a tenant can stay and abate rent or can repair & deduct), and (b) the problem with the premises need not be attributable to the landlord
25
Exception to the FHA
"Mrs. Murphy Exception" that gives an owner who rents out space in her home the ability to freely choose her tenants without needing to comply with the Act's prohibitions on discrimination based on Race, Color, etc. This applies to people who live in a dwelling and rent out no more than 3 other spaces in the dwelling.
26
two ways discrimination liability may arise for landlords
First, a landlord may intentionally discriminate based on the protected classification. This requires subjective intent to discriminate and is very hard to prove. Second, a landlord's behavior may create a discriminatory effect. The Supreme Court recently upheld "disparate impact theory" as a basis for liability. To prove disparate impact, the plaintiff has to show that she is a member of a protected group and was denied housing, which remained available (or was given to someone not of the protected group). This creates a prima facie case for disparate impact. Then the defendant can shift the burden of proof back on the plaintiff if he articulates a permissible reason for denying the housing to the plaintiff (say, economic-based determination). The plaintiff would then need to show a widespread pattern of discriminatory effect, and the court would need to determine if there was satisfactory evidence of discriminatory effect.
27
privity of contract
a contract relationship between two (or more) people who have each manifested agreement to the same terms (linked in contract, not property)
28
example of privity of contract
landlord-tenant; license agreement
29
horizontal privity
relationship between two (or more) people who each hold a simultaneous interest in property, but aren't concurrent present possessory holders
30
example of horizontal privity relationships
A life tenant and a remainder-holder are in privity of estate. A landlord and a tenant are in privity of estate. The holder of the benefit of an appurtenant easement and the holder of the burdened property for that appurtenant easement are in privity of estate
31
vertical privity of estate
AKA "chain of title" refers to the relationship between a prior holder of property and subsequent people who get substituted into that person's place in terms of the property
32
two exceptions to prior owner vertical privity
(a) buyers at a foreclosure sale, and (b) adverse possessors (although adverse possessors can create their own new chain of title with people they convey to, and these various people can tack their period of possession together)
33
When is a remainder vested?
when the party is named and alive and there is no condition precedent to take (meaning that nothing has to happen before that person can take possession)
34
To A for life, and then to B
A has LE, B has vested remainder
35
To A for life, and then to B if B has reached 18
A has LE, B has contingent remainder
36
To A for life, and then to B, but if B gets disbarred, then B's estate ends
A has LE, B has vested remainder (but it is subject to a condition subsequent: a FS/CS, in fact)
37
Are vested remainders subject to the RAP?
no
38
Are contingent remainders subject to the RAP?
yes
39
Are group gifts vested or contingent?
Group gifts can be vested (if vested for all group members), or contingent (if contingent for all group members) or "vested subject to open" if vested for some, but not all, members.
40
______ remainder holders always have standing to sue a life tenant for waste.
Vested
41
Fee simples that are defeasible (whether by words of duration or words of condition) with the future interest post-defeasance granted to a third party (someone other than grantor/grantor's heirs) are always (for purposes of this class) called
fee simple subject to executory limitation
42
Are executory interests subject to the RAP?
yes
43
The future interest of a fee simple determinable is
possibility of reverter
44
Defeasible fee simples with the future interest retained by the grantor that use words of duration are called
fee simple determinable
45
Defeasible fee simples with the future interest retained by the grantor that use words of condition are called
fee simple condition subsequent
46
What is the future interest associated with fee simple condition subsequent?
right of entry
47
Are PORs or ROEs subject to the RAP?
no
48
The main difference between PORs and ROEs is
that PORs become possessory automatically upon the defeasing condition occurring, whereas ROEs do not. For ROEs, the defeasing condition merely gives the future interest holder the right to assert title and take possession from the FS/CS holder. This means that adverse possession for a possessory interest holder can start at the moment of the defeasing condition if the possessory interest is a FSD, but it will not start if the holder has a FS/CS because that state persists until the future interest holder asserts title.
49
O conveys "To A so long as the property is used as a farm."
A has a FSD and O retains a POR. If the property ceases to be used as a farm in 2001, at that moment in time, the title is held by O (or O's heirs if O is no longer alive) in FSA. If A remains in possession, that possession is adverse (aka - HOSTILE) and the clock starts for adverse possession (assuming possession is actual and open & notorious w/a claim of right). Ten years (let's say there's a 10-year statute) later, in 2011, A can bring a quiet title action and claim FSA of the property through adverse possession.
50
O conveys "To A, provided that the property is used as a farm."
A has a FS/CS and O retains a ROE. If the property ceases to be used as a farm in 2001, at that moment in time, title is STILL held by A in FS/CS and O still holds a ROE but O now can make the ROE into a FSA if he asserts his title. But what if he doesn't? Then this state of affairs just persists. Ten years can go by, and in 2011, A still has FS/CS and O still has ROE. A never gets to claim FSA through mere passage of time under this scenario, because once the property ceases to be used as a farm, at any time in the future, O could swoop in, assert the ROE, and destroy A's right to possess. And although there may be statutory fixes to this perpetual uncertainty, the RAP doesn't help because (as you well know) the RAP doesn't ever ever ever invalidate grantor future interests.
51
capture rule in Pierson v. Post
The rule of capture held that the person pursuing the fox had no property rights in the animal unless and until the animal was brought under his control through trapping, mortally wounding, or killing (when it became vested).
52
Doctrine of Waste
Present possessors of property have a duty to interest holders without possession (as long as they are vested!) to maintain "their" property in good condition
53
What are the three types of waste?
affirmative waste, permissive waste, and ameliorative waste
54
actively doing something that creates an economic harm to the property. The could be something like cutting down a tree or kicking in a wall or ripping out the HVAC system. This is an act of commission, a bad act, and will expose the actor to liability
affirmative waste
55
passively allowing the property to fall into disrepair, not fixing things that break, or passively allowing the property to become economically harmed, for example by failing to pay real estate taxes or mortgage payments. This is bad omission (not an act), but it also exposes the duty-holder who fails to act to liability
permissive waste
56
doing something to CHANGE the property in a fundamental way, even if it creates an economic benefit rather than a harm. An example would be, knocking down an old mansion to build a high-rise office building. The property may be more valuable with the office building on it, but to get there, you have to destroy a mansion
ameliorative waste
57
Remedies for waste
Often, a plaintiff will ask for an injunction to stop threatened affirmative (or ameliorative) waste before it happens. A plaintiff may also ask for an injunction to stop affirmative waste that is ongoing or to specifically require a possessory to perform duties that are wrongfully left un-done. If it is too late to stop the waste, then a court will award damages in the amount that the value of the property has been reduced (although obviously this is not helpful in the realm of ameliorative waste). In extreme circumstances, a court may actually dispossess the possessor of his rights to control the property (by appointing a receiver), and - even more extreme - might defease an owner of his ownership in the property altogether (this is rare - but it occasionally happens).
58
when people hold the possessory right to the same property at the same time
co-tenancies
59
What is the default co-tenancy?
tenancy in common
60
What language is used in a joint tenancy?
"joint tenants" or "survivorship" (to be safe, you should always do both)
61
survivorship
when a joint tenant dies, their interest dies as well
62
In ________ _______ all tenants must have equal ownership shares.
joint tenancy
63
What are the three types of co-tenancies?
joint tenancy, tenancy by the entirety, and tenancy in common
64
_____ ______ interests are not devisable or descendible (but can be transferred during one's lifetime).
Joint tenancy
65
If a joint tenancy is transferred during one's lifetime, a _____ occurs
severance of survivorship
66
co-tenancy that is only available for legally married couples and only in some states
tenancy by the entirety
67
tenancy by the entirety language
"to A and B, a married couple" or "to A and B, husband and wife"
68
Does a tenancy by the entirety have survivorship?
yes
69
What happens to a tenancy by the entirety after divorce?
it becomes a tenancy in common
70
Can a tenancy by the entirety be severed by conveyance?
No, any conveyances is invalid and ineffective
71
What are the three rights a co-tenant always has?
partition, accounting, and contribution
72
partition
a co-tenant can, by agreement or even over the other party's objection, partition (divide up) the property
73
accounting
any co-tenant who receives income from the property (meaning rents paid by a third party or money for harvesting/mining products of the land) owes each other co-tenant their "fair share" of those dollars received. Fair share is based on ownership percentage
74
contribution
any co-tenant who pays for necessary upkeep of the property that other co-tenants know (or should know) needs to be done can obtain from the other co-tenants their "fair share" (based on ownership percentage) of the money expended to maintain the property
75
example of upkeep costs for contribution
necessary repairs, taxes on the property, and regular payments on mortgage loans, HOA/Condo assessments, etc (not renovations or improvements to the property)
76
Can a non-occupying co-tenant get reimbursed for his "fair share" of imputed rental value from an occupying co-tenant?
No, each tenant has a right to possess the property as a while. Thus, if A&B each own half of property, and A is absent voluntarily and the fair rental value of the property is $1,000 a month, A cannot sue B to obtain the value of A's voluntary absence (A's completely use of the home) in an amount equal to $500. (UNLESS B SUES FOR CONTRIBUTION)
77
(new) common law approach to marriage
Under this approach, unless property is specifically titled in both spouses (in which case, see co-tenancy), it is individually owned. Unless you have death or divorce, every spouse has freedom to manage his or her own property.
78
community approach to marriage and property
all property is categorized as "individual" (meaning acquired prior to the marriage) or "community" (meaning acquired BY EITHER INDIVIDUAL SPOUSE during the course of the marriage). Titling property in one married individual in such states actually makes it presumptively available to the other spouse. The biggest impact of this categorization comes at death or divorce
79
What happens in the (new) common law approach to marriage in property when a spouse dies?
when one spouse dies, the other spouse is given the right to elect a specific share of that spouse's estate in lieu of taking according to a will. The elective spousal share is usually 1/3 to 1/2 of the estate. If the will leaves a spouse more than that, then the spouse is deemed to have elected per the will, not the statute. But if the deceased spouse leaves less, then the surviving spouse can elect to take per this statutory share rather than the smaller % share in the will
80
What happens in the community approach to marriage in property when a spouse dies?
individual property will pass per the will without any required spousal share (meaning that the spouse can be disinherited with respect to individual property - see the case of Anna Nicole Smith), and community property will pass half to the surviving spouse and half per the will (and, not or)
81
affirmative easements
give a non-owner the right to go onto and use the owner's property
82
the contract right to use someone's property. This is not a property interest and thus cannot be specifically enforced. It also does not "run with the land" but rather is a personal agreement
license
83
this is a hybrid contract/property interest to have the possessory right to land that one doesn't own in exchange for payment of rent. If something is a lease, the holder has the present possessory right, but this is subject to the obligation to pay regular rental payments
lease
84
the non-possessory property right to use someone else's land in a particular way, within the scope granted. Unlike a license, this is an interest that runs with the land - meaning that it burdens (and benefits) future owners of the associated parcel(s). Unlike a lease, it doesn't grant possession but rather just grants a particular use. Use can be exclusive of the owner OR can be non-exclusive
affirmative easement
85
the property right to control an owner's use of his/her own property. This does NOT give a non-owner the right to go onto the owner's property
covenant
86
What does appurtenant mean?
means that there are two associated parcels of land, usually adjacent
87
______ easements can be appurtenant or in gross
affirmative
88
________ easements have ONLY a burdened parcel - there is no benefited parcel
in gross
89
estoppel
if an owner orally promises to grant an easement to someone and that person foreseeable, reasonably & detrimentally relies on that promise, and there would be a great injustice if an easement is not deemed created
90
easements can be terminated through:
1. terms of the original grant
2. deed back from the benefitted owner to the burdened owner (a reconveyance)
3. merger (burdened & benefitted parcel become owned by a single owner)
4. adverse possession
5. abandonment (requires intent to abandon)
6. estoppel
7. operation of law (marketable title acts, primarily)
8. conveyance to a bona fide purchaser (one who pays value and has no notice of the easement - neither actual nor implied from the facts "on the ground" nor "record notice")
9. conveyance to a party with a superior right (say, a mortgage holder who took its lien prior to the grant of the easement)
10. by LITERAL impossibility (completely impossible for the use to occur)
91
Negative easements deal only with:
light, air, flow of a man-made stream, support
92
Do negative easements require writing?
yes
93
Are negative easements appurtenant?
yes
94
What is needed for a covenant to be effective?
covenant promises must be in writing, must be intended to run with the land, must provide notice (usually through recordation in the land records), and must "touch and concern" the land (meaning they must impact something physically connected to the land or the land's economic value). In addition, the parties who created the covenant must have been linked in horizontal privity, and the party trying to enforce it and the party against whom it is to be enforced must also be linked with their predecessors in title in vertical privity (chain of title)
95
______ ________ is the exact same thing as a real covenant except that privity isn't required to enforce it in equity
equitable servitude
96
What are the 3 types of CICs?
co-op, condominium, and HOAs
97
enacted pursuant to state police power for health, welfare, and safety of community;
zoning
98
zoning
munciple regulation of land use
99
takings/eminent domain
allows governments to "take" property "for public use" as long as it pays "just compensation"
100
public use in takings/eminent domain
must be rationally related to accomplishing a public purpose or use results in a public benefit
101
actual entry in AP
requires that the would-be owner (the AP) actually enter and occupy the prop
102
hostile in AP
without permission of the owner (any permission negates AP)
103
claim of right in AP
possessor must be acting like the owner of the prop; requires AP to treat the prop as if they owned it (using prop, excluding others from prop, improving prop, paying taxes on prop)
104
good faith in AP
without the knowledge that he/she was possessing land not owned by him/her (some courts)
105
open and notorious in AP
must be visible to a reasonable person observing the land
106
Easement
the right to use the property of another for a specific purpose w/o taking exclusive possession of it
107
for an easement, the grant needs to:
define area and define use
