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84 Cards in this Set
- Front
- Back
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Property: FUNDAMENTALS
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Common law of property and the Arizona Residential Landlord Tenant Act, which applies to residential properties only, apply. Hence, commercial, industrial, farm and other non-dwelling tenancies are not covered."
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Concurrent Estates: Joint Tenancy
Description / Creation |
in joint tenancy, each tenant has an undivided interest in the whole estate, and the surviving joint tenant has a right to the whole estate (right of survivorship)
Creation: JTWROS is created by using the term "with survivorship" Tenancy must be created with the four unities: Time, Title, Possession and Interest. When created, each tenant has an undivided right of use, possession and enjoyment. AZ: Permits landowner to grant the property to himself and to others at the same time to create the JTWROS. |
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Concurrent Estates: Joint Tenancy
Termination by Sale |
Inter Vivos conveyance (sale): Conveyance by joint tenant of his interest destroys the joint tenancy and transferees take as tenant in common.
Where there are more than two joint tenants, conveyance by one destroys the joint tenancy as to the CONVEYING tenant only. Thus, the other tenants remain JTWROS and the new owner becomes a tenant in common with them. |
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Concurrent Estates: Joint Tenancy
NOT terminated by Mortgage |
AZ follows lien theory of title, and therefore a mortgage is considered a lien on the title and does not destroy the joint tenancy unless the mortgage is foreclosed and the property sold.
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Concurrent Estates: Joint Tenancy
NOT terminated by Lease |
Lease of an interest in joint tenancy property does not destroy it, even though the unity of interest is destroyed.
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Concurrent Estates: Joint Tenancy
Death |
Death of a joint tenant results in survivor holding free of decedent's interest. Joint tenant's share may not pass through devise or intestacy.
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Concurrent Estates: Joint Tenancy
Murder of one JT by the other |
If one JT feloniously kills another, killer's interest is severed, and JTWROS becomes a TIC. Killer keeps his original fractional share, but has no interest in the share of the decedent.
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Tenancy by the Entirety
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AZ recognizes only CP.
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TIC
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Each tenant has a distinct, proportionate, undivided interest in the property. No right of survivorship.
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Rights and Duties of Co-T's:
Possession |
Each Co-T has the right to possess all of the property. No T can exclude another from any part of the land.
A co-T out of possession cannot bring a claim for reimbursement for the time his co-T's are in possession, unless he is "ousted" Ouster is the wrongful exclusion of a co-owner from possession fo the whole or any part of the property. In AZ if co-T in possession commits an ouster, he loses his right to contribution. |
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Rights and Duties of Co-T's:
Rents and Profits |
Each Co-T has a duty to pay his share of taxes and mortgage payments. A T who contributes more than her proportionate share may collect reimbursement from the others only for the amount that exceeds the rental value of the property.
T in possession has primary responsibility for taxes and mortgage interest, but has right to retain profits and rents gained from her use of the property and does NOT have to share with T out of possession (absent ouster). She must, however, share rents with third parties and profits gained from use of land that reduces its value. Co-T may not commit voluntary waste without an accounting to her Co-Ts. |
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Rights and Duties of Co-T's
Improvements: |
At a partition sale, co-T who made improvements on the property is entitled to recover the increment they made to value, even if this is more than their cost.
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Rights and Duties of Co-T's:
Effect of Co-Owner's Encumbrance on Property |
JTWROS or TIC may encumber HER interest (e.g. mortgage, judgment lien), but may not encumber interests of other co-T's. If for example one tenant takes a mortgage on her portion of the joint estate, and defaults, then mortgagee can foreclose only on HER interest.
IF JTWROS is involved, a mortgage (in lien theory state like AZ) or lien does not sever JTWROS, but a foreclosure sale will. Note that in the case of a joint-tenancy, Mortgagee or lienor runs the risk that obligated co-T will die before foreclosure, extinguishing the mortgagee's or lienor's interest. |
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Rights and Duties of Co-T's:
Remedy of Partition |
At any time, a co-T can demand partition of the property and court will do an accounting settling amounts owed by co-Ts to one another for rent, repairs, taxes and the like.
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Rights and Duties of Co-T's:
DUTY OF FAIR DEALING WITH OTHER CO-T's |
T has a duty of fair dealing with other Co-T's.
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LANDLORD - TENANT:
Nature of Leaseholds |
1) Tenancy for years
2) Periodic Tenancy 3) Tenancy at Will 4) Tenancy at Sufferance 5) No Agreement |
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LANDLORD - TENANT:
Nature of Leaseholds: Tenancy for Years |
Tenancy that lasts for some fixed period. No notice is required to terminate, ends automatically at termination date.
(AZ Courts prefer to interpret tenancies as having a fixed rather than indefinite term) |
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LANDLORD - TENANT:
Nature of Leasehold: Periodic Tenancy |
Tenancy for some fixed period that automatically renews at the end of each period until either party gives proper notice of termination.
Week-Week = 10 days Month to Month = 30 days Year to Year= CL = 6 mo, AZ, 30 days? |
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LANDLORD - TENANT:
Nature of Leaseholds: Tenancy at Will |
Terminable at the will of either L or T.
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LANDLORD - TENANT:
Nature of Leasehold: Tenancy at Sufferance |
Arises when a T wrongfully remains in possession after the expiration of a lawful tenancy (holds-over). Tenancy at sufferance terminates when L evicts T, or elects to hold T to another term (up to a year)
Under ARLTA L may seek a FED action to remove T. If L does NOT seek FED, all holdover T's become month-to-month T's. |
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FED Statutes
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Under ARLTA, even when the lease has been terminated, L MAY NOT practice self-help eviction in a residence (e.g. changing locks, cutting off utilities, forcibly removing T).
NON-ARLTA: self-help is permitted. L may re-enter and take possession. |
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ARLTA:
T Duties |
Duty to Repair:
1) T must comply with codes, 2) Keep property clean and safe, 3) Remove garbage, 4) Keep plumbing fixtures clean, 5) use facilities and appliances in a reasonable way; and 6) Not interfere with her neighbor's quiet enjoyment. |
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ARLTA: Doctrine of Waste
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T cannot damage or commit waste on the leased premise.
T may not consume or exploit the natural resources on leased land, except: 1) Where necessary to repair of maintain property 2) Where it is the only suitable use of land 3) Where exploitation was done prior to the grant; or 4) Where there is express permission. |
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ARLTA: Duty to Pay Rent
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L may terminate lease and bring an FED action to recover rent if it is 5 days delinquent after L gives notice to quit or pay rent.
The only issue in a FED proceeding is whether T has right to possession. T CANNOT raise counterclaims. Up to the date of the judgment in the FED action, T may pay rent, and L may hold T's personal property. L may NOT assert a lien on T's goods T abandons: When T abandons, L is permitted to take possession of any goods left behind and after attempting to notify T, sell after 10 days. L has a duty to mitigate damages by trying to relet after T abandons. |
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ARLTA: Landlord Duties and T Remedies: DUTY TO REPAIR
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1) Duty to Repair: L must comply with building codes, keep property in habitable condition, keep common areas clean and safe, maintain all facilities and appliances he supplies, provide trash removal, and supply water, heat and A/C.
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ARLTA: Landlord Duties and T Remedies: DUTY TO DELIVER EXCLUSIVE POSSESSION OF PREMISES
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L is obligated to give T exclusive possession and remove any holdover T. T may terminate tenancy on 5 days notice, sue the the person in wrongful possession and recover damages from L.
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ARLTA: Landlord Duties and T Remedies: CONSTRUCTIVE EVICTION
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T may terminate lease if property is damaged or destroyed by fire or other casualty. No contrary agreement is enforceable: T may terminate "if enjoyment is substantiallyl impaired."
Alternatively the T may continue to occupy part of the premises, if lawful, and abate the rent pro-rata. In AZ only an INTENTIONAL act of L will suffice. The condition must be VERY bad to constitute constructive eviction (e.g where neighbors pissing on common wall, L aware and refused to do anything.) |
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ARLTA: Landlord Duties and T Remedies: Implied Warranty of Habitability
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L must comply with local codes that affect health and safety. If L fails to make repairs after notice and an opportunity to cure:
T's Remedies: 1) TERMINATE LEASE, SEEK DAMAGES: Damages may include reduced rental value of the premises, injury to personal property, medical expenses resulting from illness caused by defects, and mental distress. REPAIR and DEDUCT: T may make repairs and deduct cost from the next month's rent. |
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ARLTA: Landlord Duties and T Remedies: Implied Warranty of Habitability: Constructive Eviction Remedies
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If essential services are cut off (heat, air-conditioning, water, etc.) T may
1) Obtain services and deduct cost from rent due. 2) Recover damages equal to diminution of FMV rent 3) Obtain reasonable substitute housing and recover the difference in rent from old L. |
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ARLTA: Landlord Duties and T Remedies: Retaliatory Action Remedies
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L may not raise rent, reduce services or terminate a tenancy in retaliation for T's complaints to authorities about code violations or violations of her legal rights or organizing or joining a tenant's organization. Adverse actions by L within 6 months are presumed retaliatory and illegal.
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NON-ARLTA:
T Duties and L Remedies: FED |
Duty to Pay Rent: L may terminate lease and bring FED action to recover rent if rent is 5 days delinquent or T violates ANY provision of lease, even a non-material breach. NO NOTICE required.
IN FED ACTION: issues limited to: 1) Whether there is an existing lease. 2) Whether it should be terminated for non-payment or other breach. When T fails to pay, L may hold T's property. |
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NON-ARLTA:
T Duties and L Remedies: Landlord's Lien for Delinquent Rent |
L may asset lien on T's goods, if the rent is delinquent. Even goods of person who is not T, assignee or sub T may be liened if the person owns rent. To asset the lien, L may seize the goods,and if the rent is not paid within 60 days, may sell them at auction. No judicial process. L can assert lien even though he has wrongfully locked T out.
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NON-ARLTA:
T Duties and L Remedies: T abandons |
L has a duty to mitigate damages by trying to relet if T abandons.
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NON-ARLTA:
L Duties and T Remedies: Duty to Deliver Possession of Premises |
L is obligated to give T exclusive possession and to remove any holdover T.
Constructive Eviction: In AZ Only an intentional act of L will suffice. Condition must be VERY bad to constitute constructive eviction |
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ASSIGNMENTS AND SUBLEASES:
Definition |
Absent an express restriction in the lease, T may freely transfer her leasehold interest in whole or in part. A complete transfer of the entire remaining term is an assignment. If the T retains any interest in the remaining term, the transfer is a sublease.
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Assignments and Subleases:
Consequences of Assignment |
Assignee stands in the shoes of the original T in direct relationship to L.
Privity: L and Assignee are in privity of estate, but not privity of K (original T and L remain in privity of K.) Covenants Running w/ Land: Assignees are liable to L for all covenants that run with the land (covenants run with the land if the original parties to the lease so intend, and if the covenant touches and concerns the land (benefits L and burdens T or vice versa) RENT COVENANTS:Since covenant to pay rent runs with the land, A owes rent directly to L. Original tenant remains liable. SUBSEQUENT ASSIGNMENT: If assignee reassigns leasehold interest, he has no liability for the SUBSEQUENT assignee's failure to pay rent. |
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Assignments and Subleases:
Consequences of Sublease |
Sublessee is not in privity with L (of K or estate). Sublessee is T of original T., and usually pays rent to original T who then pays L.
In AZ, a sublessee is personally liable for rent, but NOT for other covenants, for the time they are in possession. |
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Assignments and Subleases:
Consequences of Sublease Landlord Remedies |
L may terminate main lease for non-payment of rent or breach of other covenants. Sublease automatically terminates with main lease.
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Assignments and Subleases:
Consequences of Sublease Rights of Sublessee |
Sublessee cannot enforce any covenants made by L in main lease because he is not in privity. Exception: Residential sublessee may be able to enforce the implied warranty of habitability against L.
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Assignments and Subleases:
Covenants Against Assignment or Sublease--Reasonableness |
If the lease contains a clause requiring the L's consent for assignments or subleases, the AZ cases require that L withhold consent only on REASONABLE grounds.
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Tort Liability of L and T:
General Duty of Reasonable Care |
AZ holds the L to an ordinary negligence standard. (did he act as a reasonably prudent person under the circumstances?) This applies to both residential and non-residential tenancies.
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Tort Liability of L and T:
L Must Know of Defect |
L is liable only if he knows or has reason to know of the defect.
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Tort Liability of L and T:
Liability for Criminal Conduct |
L's duty includes the prevention of harm from foreseeable intrusions by criminals.
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Tort Liability of L and T:
T Aware of Defect |
L under no duty to warn T of a condition he reasonably believes T will discover, unless the L has reason to believe that the T will not appreciate the risk.
IF T has ample opportunity to discover the hazard, L is no longer liable to T or T's guest. |
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Tort Liability of L and T:
L's Liability for Nuisance |
If T commits a nuisance on the leased premises, the L will be held liable, provided he had notice of it and the ability to remedy it.
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RIGHTS IN LAND OF ANOTHER: 5
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Easements, Licenses, Profits, Covenants and Servitudes
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RIGHTS IN LAND OF ANOTHER:
Easements |
Easement is a non-possessory interest in land giving the holder the right to use the land of another--a limited right to use.
Dominant land: benefited by the easement. Servient land: burdened by the easement. Affirmative vs. Negative: Affirmative gives the right to enter and use land, negative gives the holder of the dominant estate the right to prevent uses of the servient estate (usually to grant light, air, lateral/subjacent support, stream flow) |
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RIGHTS IN LAND OF ANOTHER:
Types of Easements |
Implied, Express, by Prescription, by Necessity
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RIGHTS IN LAND OF ANOTHER:
Types of Easements: Express |
Express easement created when owner of the servient estate grants the easement to the owner of the dominant estate. SOF requires that easements for more than one year must be in writing and signed by the owner of the servient estate. Express grant of easement must comply with all formalities of a deed.
Express reservation: Easement by reservation arises out of conveyance of title to land, but reservation is made of the right to continue to use the tract for special purposes. MAJORITY: Easement can be reserved ONLY for the grantor. Reservation of easements for 3rd parties is VOID. |
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RIGHTS IN LAND OF ANOTHER:
Types of Easements: Implied |
Implied easement is implied from use that existed at the time the dominant and servient estates were severed.
Exception to SOF writing requirement. Requires 4 Elements: 1) Former common ownership of parcels. 2) Use was reaonably apparent at time the parcels were severed. 3) Quasi easement before severance of the parcels--used like an easement 4) Easement is reasonably necessary--or in AZ "very convenient" to use to enjoy dominant estate. |
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RIGHTS IN LAND OF ANOTHER:
Types of Easements: by Necessity |
Another Exception to the SOF writing requirement, and implied by law when landowner has no other means of access to the land.
AZ cts have recognized an easement by necessity when necessary to provide reasonable access to tehproeprty. Mere inconvenience is not sufficient for easement by necessity. If Landowner subdivides so as to leave himself in a landlocked position, he is SOL. |
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RIGHTS IN LAND OF ANOTHER:
Types of Easements: By Prescription |
Requires holder's use to be:
10 years. Continuous (regular, not necessarily frequent), Open, Notorious, Adverse (without owner's permission), Hostile, Actual: No negative easements by prescription. IF servient owner attempts to physically bar adverse use, but claimant breaks down barrier, prescriptive period is not interrupted, in fact, acts indicate that requisite hostility and actual notice exist. |
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RIGHTS IN LAND OF ANOTHER:
Easements: SCOPE |
Not terminated by change in use or increase in scope. Scope must be reasonable allowing for reasonable changes in technology: e.g. cars instead of horsedrawn carriages.
Owner of easement must not attach more land onto the dominant estate and use the easement for the benefit of the additional land (overburden) If the scope of the easement has been exceeded, the remedy is damages or injunction. To get injunction, must show 1) inadequate remedy at law--money will not make whole (presumed inadequate to compensate because land is unique) 2) Property interest--she is the holder of an interest in the land 3) Injunctive relief is feasible 4) She prevails in a balancing of the hardships and equities; and 5) There are no equitable defenses. |
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RIGHTS IN LAND OF ANOTHER:
Easements: Termination by Merger |
Termination of easement by merger occurs when same person acquires ownership of both easement and servient estate, estates merge and easement is destroyed--not automatically revived if estates are severed again later.
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RIGHTS IN LAND OF ANOTHER:
Easements: Termination by Release |
Termination of easement by release occurs when the owner of the dominant tenement deeds a written release to the owner of the servient tenement. Oral expressions of intent to abandon do not terminate an easement.
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RIGHTS IN LAND OF ANOTHER:
Easements:Termination by Abandonment |
Termination of an easement by abandonment occurs when the holder of the easement intends to permanently abandon the easement and does a physical act--Mere non-use is not enough.
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RIGHTS IN LAND OF ANOTHER:
Easements:Termination by Estoppel |
Termination of an easement by estoppel occurs when the owner of the servient estate changes his position in reasonable reliance on the representations made by the holder of the easement.
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RIGHTS IN LAND OF ANOTHER:
Easements:Termination of Prescriptive Easement |
Adverse, continuous interruption of use of a prescriptive easement for 10 years terminates the prescription.
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RIGHTS IN LAND OF ANOTHER:
Easements:Termination of Easements by Necessity |
Easement terminates as soon as necessity terminates.
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RIGHTS IN LAND OF ANOTHER:
Easements:Termination by Condemnation or Destruction |
Occurs when the servient estate is condemned. Termination of an easement by destruction occurs when there is an involuntary destruction of a structure. Voluntary destruction of such structure does NOT.
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RIGHTS IN LAND OF ANOTHER:
Licenses |
Privilege giving the holder the right to enter upon the land of another. It is revocable at the will of licensor. License personal to licensee, and therefore inalienable. Any attempt to transfer license is revoked by operation of law.
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RIGHTS IN LAND OF ANOTHER: Failed attempt to create easement creates license
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If grantor orally grants an easement for more than a year, a license results because the grant is not in writing, and therefore the attempted easement fails.
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RIGHTS IN LAND OF ANOTHER:
License Irrevocable When: |
1) Licensee invests substantial amounts of money or labor in reliance on the license, licensor is estopped to revoke. License becomes an easement by estoppel, which lasts until the holder receives sufficient benefit to reimburse him for his expenditures.
2) License coupled with an interest: irrevocable as long as the interest lasts. |
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RIGHTS IN LAND OF ANOTHER:
Profits |
Entitle the holder of the benefit to take some resources from the servient estate.
Implied in every profit is an easement entitling the benefit holder to enter the servient estate to remove the resources. |
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RIGHTS IN LAND OF ANOTHER:
Covenants Running with the Land |
A real covenant, normally found in a deed, is a written promise to do something on the land, or a promise NOT to do something on the land.
Real covenants run with the land at law, which means that subsequent owners may enforce or be burdened by the covenant. In AZ covenants must be in writing to satisfy the SOF, and oral covenants are not binding. For a covenant to be binding, the deed containing it must be valid, and the requirements for a valid covenant must be met. |
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RIGHTS IN LAND OF ANOTHER:
Covenants: Requirements of a Deed |
To be valid, the deed must be in writing, identify the land and the parties and contain words of intent to grant or convey. In AZ deed must be acknowledged before a notary public to be valid and recordable. Finally, the deed must be delivered to the grantee, either actually or constructively. Consideration is not necessary to make a deed valid.
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RIGHTS IN LAND OF ANOTHER:
Requirements of a Covenant: Requirements for a Burden to Run |
Requirements for burden to run: For covenant to be valid and binding upon successors in interests in AZ, both the burden and the benefit must run.
For the burden to run, 5 elements must be met: 1) There must have been an intent that the successors be bound by the covenant. 2) Successors must have notice of the covenant 3) Original covenanting parties must be in horizontal privity--requires some kind of interest between the two beyond the covenant, such as grantor-grantee, landlord-tenant, mortgagor-mortgagee. 4) For a successor to be bound, must have vertical privity to the covenantor which requires that the successor succeed in entire interest. 5) Covenant must touch and concern the land, which requires that covenant makes land more useful, more valuable, etc, to the benefited party. |
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RIGHTS IN LAND OF ANOTHER:
Requirements of a Covenant: Requirements for a Benefit |
For the benefit to run, only three requirements must be met:
1) Intent that successors be bound by the covenant 2) Vertical privity must exist, but only some interest, not all, of covenantor be passed to the successor; and 3) Covenant must touch and concern the land. |
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RIGHTS IN LAND OF ANOTHER:
Remedy for Breach of Real Covenant |
Remedied by award of money damages.
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RIGHTS IN LAND OF ANOTHER:
Equitable Servitudes |
Equitable servitude is a covenant that equity will enforce against assignees of the burdened land who have notice of the covenant.
Equitable servitudes are created in writing, satisfying the SOF and oral covenants are note binding. For a restrictive covenant to be binding, the deed containing it must be valid and the requirement for a valid restrictive covenant must be met. |
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RIGHTS IN LAND OF ANOTHER:
Equitable Servitudes: Requirements of a Deed |
To be valid, a deed must be in writing, acknowledged in front of a notary, include identification of land and parties, contain words intended to grant or convey. Deed must be delivered to grantee, either actually or constructively. Consideration is not necessary to make a deed valid.
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RIGHTS IN LAND OF ANOTHER:
Equitable Servitudes: EXCEPTIONS |
Servitudes may be implied from common schemes: Negative equitable servitudes may be implied from a common scheme for development of a residential subdivision. In AZ a common scheme exists only if hte covenants specifically refer to the fact that the scheme exists, or if the state the extent of the land to be governed by identical covenants. The mere existence of identical covenants in a set of deeds is not enough.
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RIGHTS IN LAND OF ANOTHER:
Equitable Servitudes: Notice |
To be bound by a covenant not in her deed, grantee must have had notice of the covenants in the deeds of others in the subdivision. Notice may be actual (direct knowledge of covenants), inquiry (neighborhood appears to conform to common restrictions), or record (prior deed with covenant in grantee's chain of title.)
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RIGHTS IN LAND OF ANOTHER:
Requirements of Equitable Servitudes |
Requirements for burden to run:
-Benefit and burden must both run. -For burden to run, 3 elements: 1) Intent that successors, heirs, grantees and assignees of grantee be bound, 2) Successors must have notice-actual, inquiry or record of the covenant, and 3) Covenant must touch and concern the land. |
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RIGHTS IN LAND OF ANOTHER:
Requirements for burden of Equitable Servitude to Run |
3 elements:
1) Intent that successors, heirs, grantees and assignees of grantee be bound, 2) Successors must have notice-actual, inquiry or record of the covenant, and 3) Covenant must touch and concern the land. |
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RIGHTS IN LAND OF ANOTHER:
Requirements for benefit of Equitable Servitude to Run |
Only two requirements for benefit to run:
1) Intent that successors be bound 2) Covenant must touch and concern the land. |
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RIGHTS IN LAND OF ANOTHER:
Equitable Servitude: Remedy |
Breach of real covenant is remedied by injunction
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RIGHTS IN LAND OF ANOTHER:
Equitable Servitude: Defenses |
1) Unclean hands: person seeking enforcement is violating similar covenant on his land.
2) Acquiescence: benefited party acquiesced in a violation of the servitude by one burdened party. 3) Estoppel: A benefited party acted in such a way that a reasonable person would believe that the covenant was abandoned. 4) Laches: Benefited party failed to bring suit against burdened party in a reasonable time 5) Changed neighborhood: The neighborhood has changed so significantly that enforcement would be inequitable. -Covenant abandoned -circumstances have so changed that enforcement would no longer be sensible. Changed circumstances outside the subdivision but nearby will NOT produce this result. Increased gov't regulation, even if it makes use of the land under the covenant uneconomical, is not the sort of changed condition that will justify a court refusing to enforce the covenant. |
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ADVERSE POSSESSION:
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Title to real property may be acquired by adverse possession.
Open, Notorious, Hostile, Actual, Continuous, Exclusive. |
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ADVERSE POSSESSION:
Open and Notorious |
Use must be such as a true owner would make of the property, and in a manner sufficiently apparent to put the true owner on notice of the use. NOT essential that owner have actual notice, but it's treated as strengthening the adverse possessor's case.
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ADVERSE POSSESSION:
Actual and Exclusive |
Possession must be actual and not shared with the owner.
AP must hold the land exclusive of the true owner, and also exclusively of competing adverse possessors. . Possessor may only gain title to the property he actually uses. Grazing livestock on the land is not sufficient possession unless the land is actually fenced, or the livestock are tethered to confine them. |
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ADVERSE POSSESSION:
Continuous for statutory period |
Requires only the degree of occupancy and use that the average owner would make the property. In AZ only the degree of continuity of possession to which the land is susceptible is required. In one AZ case the AP occupied a vacation cabin for 2-3 weeks a year every summer for 30 years--that was sufficient. Statutory period in AZ is 10 years.
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ADVERSE POSSESSION:
Hostile |
Requires merely acting like the owner, being on the property without the permission of the owner.
Whether AP has awareness that he is on the land of another is immaterial. Actual notice to the true owner is necessary when it might be assumed that the AP has permission to be on the land: e.g. when AP is a close relative of the true owner, or a previous owner who remains on the land after selling it to a new owner. |
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NUISANCE:
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To prevail on this claim, P must establish that D's use of her property is unreasonable, substantial interference with the use and enjoyment of P's land.
Interference must be substantial, meaning annoying and offensive to the average person in the community. Use must be unreasonable, meaning injury must outweigh utility of the use. In defense, D may argue that P is hypersensitive, and that the average person in the community would not be bothered. Defense that P "came into the nuisance" means that P assumed the risk of the nuisance by moving in next to it wtih knowledge that it existed--AZ DOES NOT RECOGNIZE THIS as a defense, as every person is entitled to a reasonable use and enjoyment of his land. D may argue estoppel, which requires P's actions reasonably led D to believe and rely to its detriment that P did not mind. |
