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204 Cards in this Set
- Front
- Back
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adverse possession and future interests
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the statute of limitations does not run against a holder of a future interest until the interest becomes possessory.
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inquiry notice
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sometimes a purchaser is required to make reasonable inquiries and is charged with whatever knowledge an inquiry would have revealed.references to unrecorded transactions in recorded instruments, etc., are enough to put on inquiry notice. just because a quitclaim deed was used, it does not mean inquiry notice.
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termination of covenant
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as with all other nonposessory interests, it can be terminated by
-written release -merger -condemnation of burdened property |
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RAP and grantor's interests
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RAP does not apply to grantor's interests (reversion, rights of entry, etc.)
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encubrances
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mortgages, liens, restrictive covenants, easements, and significant encroachments make title unmarketable. a beneficial easement does not. remember that seller has the right to satisfy these at closing, so buyer can't claim title is unmarketable if closing will result in marketable title.
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record notice - chain of title
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a purchaser can only have record notice of conveyances that are recorded and appear in the chain of title.
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crucial difference between real covenants and equitable servitudes
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the remedy sought. if money is sought, you must use the real covenant analysis. if an injunction is sought, use equitable servitude. a single promise can create BOTH.
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contingent remainder
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created in unborn or unascertained people, or subject to a condition precedent.
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requirements of adverse possession
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-running of the statute
-open and notorious -continuous -hostile (w/out permission)(it doesn't matter if adverse possessor knows she is trespassing.) |
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valuable consideration
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to be protected by a recording statute the subsequent grantee must prove that he is a purchaser, not a donee. consideration need not be adequate, but it must be of pecuniary value (love/affection not enough). property received as security for a debt is not enough. purchaser is protected only from the time consideration WAS PAID.
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requirements for benefits to run on real covenants
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if these 3 are met, the promisee's successor in interest may enforce the covenant:
-intent (that the successors may enforce the covenant) -vertical privity -"touch and concern" the land |
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trusts
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a fiduciary relationship with repsect to specific property. the trustee holds legal title subject to equitable rights in the beneficiary. creator is the settlor - he must own the trust property at creation and INTEND to create the trust. RAP applies; must be in writing.
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adverse possession and disability
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the statute of limitations does not begin to run if the true owner is disabled when the cause of action first accrued. (too young, in prison, insane)
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breach of covenants
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3 of the covenants are brached at time of conveyance (if at all):
-seisin -right to convey -encumbrances. The rest are future covenants (quiet enjoyment, warranty, and further assurances) and are breached only on disturbance of grantee's possession. |
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real covenants versus
equitable servitudes |
real covenants ALWAYS require a writing to create; equitab;e servitudes USUALLY require a writing, unless it arises by imlication in a residential development situation.
real covenants require horizontal and vertical privity; equitable servitudes require neither. real covenants give rise to money damages; equitablle servitudes to an injunction. |
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zoning restrictions
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they don't affect marketablity unless there's an EXISTING violation.
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rule against perpetuities
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no property interesi is valid unless it MUST vest, if at all, no later than 21 years after some life in being at the creation of the interest. Applies to:
contingent remainders executory interests class gifts rights of first refusal powers of appointment options to purchase (not attached to a lease) |
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sale of existing land or buildings - liability for defects
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seller of not new construction may be liable to purchaser for defects such as leaky roof, flooding basement, termites, because of:
-fraud (false statement) -active concealment -failure to disclose |
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actual notice
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knowledge obtained from any source (newspaper, word of mouth, etc.)
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requirements for benefit to rin on an equitable servitude
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the benefit runs with the land and is enforceable by promisee's successors if there's intent, abd it "touches and concerns" the benefited property. no privity of etate is required.
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doctrine of merger
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when one person acquires all of the present and future interests in land except a contingent remainder, the contingent remainder is destroyed. if life estate and next vested interest were created by the same instrument, no merger.
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docrtine of equitable conversion
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once a contract is signed, equity regards the buyer as the owner of the real property. the seller's interest is considered personal property (in the proceeds of the sale). the bare legal title in the seller is considered to be held in trust for the buysr, and the seller gets possession until closing.
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leasehold tenant waste
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same as for life estate
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covenants not to compete
covenants to pay money (like homeowner's fees) |
these run with the land
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administrative contingency
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a gift conditioned on admission of will to probate or any other administrative occurrence violates the RAP.
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formalities of a deed
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must be in writing, signed by the grantor, and reasonably identify the parties and the land. if it's delivered without the name of the grantee, the oersib taking delivery can fill in the name. if land description is blank, the deed is void unless grantee was specifically permitted to fill in the blank.
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those protected by recording acts
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ONLY BFP's are protected from the claims of a prior grantee under "notice" and "race-notice" statutes. to be a BFP a persom must be a purchaser, without notice (actual, constructive or inquiry) and pay valuable consideration.
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racially restrictive covenants
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unenforceable
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options to buy and
rights of first refusal |
when these are structured so that they might be exercised after 21 years they are void. But RAP does NOP APPLY to options to buy attached to a lease. (if you're talking about a current tenant, it's okay. past tenants violate RAP.)
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time of performance
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courts don't think that time is of the essence in real estate contracts. closing date is not absolutely binding and a party who performs late can still enforce the contract if she performs within a reasonable time (2 months.)
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title search
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in a TRACT INDEX jurisdiction, the searcher looks at the page indexed by block and/or lot describing the property and any instruments affecting it.
In a GRANTOR AND GRANTEE INDEX jurisdiction, the searcher establishes chain of title by searhing back in time in the index. from that point, he searches forward to see if any grantor conveyed an interest in anyone not included in the backward chain of title. |
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termination of an equitable servitude
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by written release, merger, or condemnation.
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unborn widow(er)
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since a person's widow isn't determined until his death, it could turn out to be someone who wasn't born at the time of disposition. "to A for life, then to A's widow for life, then to A's issue" is not valid to A's issue.
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liquidated damages
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sales contracts usually require buyer to deposit 'earnest money' with the seller and provide that if buyer defaults, seller can retain this money as liquidated damages. courts will enforce as long as it's reasonable.
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purchasers for purposes of BFP
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all statutes protect purchasers. mortgagees for value are not purchasers. donees, heirs and devisees are NOT protected because they do not pay for value.
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requitrements for burden to run on an equitable servitude
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intent, notice, "touch and concern".
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shifting interest
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divests a transferee's preceeding freehold estate.
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land that CAN NOT be adversely possessed
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-government-owned land
-land registered under a Torrens System |
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race-notice statutes
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under a race-notice statute, a subsequent BFP is protected only if he TAKES WITHOUT NOTICE and RECORDS BEFORE the prior grantee.
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common scheme of development in a residential subdivision
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RECIPROCAL NEGATIVE SERVITUDES will be implied only if, at the time that the sales in the subdivision began, the developer had a plan that all parcels would be subject to the restriction. This may be evidenced by:
-a recorded plat, -a general pattern of restrictions, or -oral representations to early buyers. if scheme arises after some lots are sold, no covenants as to the rest without express covenants. (no more implied.) |
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"must vest"
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an interest vests:
-when it becomes possessory, -when it becomes an indefeasibly vested remainder, or -when it becomes a vested remainder subbject to total divestment. make sure that if the interest vests, it will do so in life+21. if at all possible to vest later, it's void. |
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risk of loss in a land sale contract
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under the doctrine of equitable conversion, if property is destroyed (without fault of either party) before closing, risk is on the buyer. unless the state has enacted the UNIFORM VENDER AND PURCHASER RISK ACT, which places risk on seller unless buyer has title or possession at the time of loss. even if risk is on buyer, seller myst credit any insurance payment against the purchase price the buyer will pay him.
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effect of recordation
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it gives prospective subsequent grantees constructive ntice of the existence and content of recorded instruments. it also raises a presumption of valid delivery and authenticity. but it does not validate an invalid deed or protect against interests arising by operation of law (like title by adverse possession). to this extent, BFP's are still in jeopardy.
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nonpossessory interests
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easements
licenses profits real covenants/equitable servitudes |
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fee simple absolute
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the largest and best estate. can be sold, divided, devised, or inherited. has indefinite duration. "to A" or "to A and his heirs."
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land sale contract - passage of title at death
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under the doctrine of equitable conversion, if a party to a land sale contract dies before it's completed, the seller's interest passes as presonal property and the buyer's as real property. (but watch for ademption rules if property is devised by will.)
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destruction of lease presmises without fault
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if it's no one's fault, no one has to restore premises, but tenant must keep paying rent. most states give tenant option to terminate.
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notice of an equitable servitude
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grantee must have had notice of the covenant to be bound, if it's not in her deed. can be actual (direct knowledge), inquiry (neighborhood appears to conform to a common scheme), or record (there's a prior deed with the covenant in chain of title).
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ameliorative waste
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a change that benefits the property economically. a life tenant can alter or demolish buildings if:
-merket value of future interests isn't diminished, -remaindermen don't object, or -substantial and permanent changes in neighborhood have deprived property of its old form of usefulness. |
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party walls and common driveways
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belong to both parties. each can use; neither can unilaterally destroy. need written agreement to creats. irrevocable license reults from detrimental reliance. if parties agree to be mutually maintain, it runs with the land.
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types of recording acts
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recording acts are in effect in every state. there 3 major types: race, notice, and race-notice. under all 3, the burden is on the subsequent taker to prove that he qualifies fro protection under the statute.
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equitable defenses to enforcement
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a court won't enforce an equitable servitude if:
-unclean hands (the person seeking the enforcement is violation a similar restriction) -a benefited party acquiesced -estoppel (a benefited party acted in a way that a reasonable person would think the covenant was abandoned) -laches (the benefited party fails to bring suit within a reasonable time, or -the neighborhood has changes so significantly that enforcement would be inequitable. |
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remainders
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a future interest in a 3rd person that can become possessory on the NATURAL EXPIRATION or the preceding estate. can't divest an estate or follow a time gap. must be EXPRESSLY created in the interest creating the previos estate. "to A for life and then to C and his heirs;" C has a remainder. "to C and his heirs 1 day after A's death;" no remainder (time gap.)
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void deeds
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forged, was never delivered, obtained by fraud in the factum (grantor was tricked and didn't know she was executing a deed.)
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resorder's mistakes
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an instrument is considere recorded when filed with the recorder's office, regardless of whether it is thereafter properly indexed. a subsequent purchaser is charged with notice of a misindexed instrument, but has a cause of action against the recorder's office.
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remedy for breach of covenant
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damages only. if an injunction is sought, the promise MUST BE ENFORCED as an equitable servitude
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vested remainder subject to open
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created in a class of persons ("children") that is CERTAIN to become possessory but is subject to dimunution by the birth of additional people who will share remainder. "to B for life, then to C's kids;" B and C are alive and C has one kid D. D has it.
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defective deeds
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a void deed is set aside even if property passes to a bonafide purchaser, a voidable deed will be set aside only if it has not passed to a bonafide purchaser.
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leasehold
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an estate in land where tenant has a present possessory interest and landlord has a reversion.
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equitable servitudes
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a COVENANT that equity will enforce against the assignees of the burdened land regardless of whether it runs with the land, as long as he assignees have NOTICE of the covenant, in the form of an injunction.
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open mines doctrine
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if mining was done on the land prior to the life estate, the life tenant can continue mining - but only the mines ALREADY OPEN.
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land sale contracts and the statute of frauds
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a contract for the slae of land must be in writing and contain the signature of the party to be charges. must contain the essential terms - parties, description of the land, price. part performance can take a contract out of the statute.
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tenancy by the entirety
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a MARITAL estate. acts like joint tenancy. Severence occurs on death, divorce, mutual agreement, or execution of a joint creditor. a conveyance by one spouse without the other's agreement is ineffective.
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creation of an equitable servitude
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generally, use a writing to satisfy S/F. BUT negative servitudes can be implied from a common scheme for development of a residential subdivision. (if some deeds contain negative covenants and others don't, they'll be binding on all parcels if there was a common scheme of development and notice of the covenants.)
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leasehold tenants and ameliorative waste
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a leasehold tenant IS liable for ameliorative waste regardless; but a life tenant is not.
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delivery and acceptance of deeds
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a deed isn't effective unless it's delivered and accepted. a deed to a dead person is void and conveys no title.
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rights of co-tenants:
remedy of partition |
any co-tenant has a right to judicial partition. this includes physical division of the land between co-tenants or sale and division of the proceeds.
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negligence
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a person can sue the builder for negligence
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fee simple subject to condition subsequent
(and right of entry) |
grantor reserves the right to terminate the estate upon happening of a stated event; it does NOT automatically termiinate, the grantor must take some action. "upon the condition that," "provided that," "but if, " and "if it happens that."
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fraudulent conveyance
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even if deed complies with required formalities, it may be set aside by grantor's creditors if it was made with actual intent to hinder, delay, or defraud any creditor, or if no money was received for the transfer and it was a move to become insolvent. but deed won't be set aside against a grantee who took in good faith and paid reasonable value.
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restraints on alienation of EQUITABLE interests
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spendthrift clauses in trust agreements, etc. these are valid. (restraints are only invalid on some legal interests.)
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warranty of fitness or quality (for new construction only)
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there are no implied warranties of qulity or fitness for purpose except in the sale of a new house.
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age contingency beyond 21 in a class gift
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a class gift can't be conditioned on members surviving beyond age 21.
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"wait and see statutes"
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some states wait and determine an interest's validity upon the termination of the preceeding life estate.
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remedy if title is not marketable
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buyer must notify seller and give him reasonable time to cure.if seller fails, remedies are rescission, damages, specific performance with abatement, and a quiet title suit. A QUITCLAIM DEED DOES NOT IN ANY WAY AFFECT THE WARRANTY TO PROVIDE MARKETABLE TITLE.
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reversions
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the estate left in grantor who conveys less than she owns. arises by operation of law. is transferable, devisable, and inheritable, and its holder can sue for waste and tortious damage to the interest. A conveys "to X for life;" A has a reversion.
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defects in record chain of title
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title can be unmarketable because of a defect in chain of title. title obtained by adverse possession is unmarketable. when a future interest holder is unborn or unascertained it is impossible to convey marketable title.
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per capita gift exception
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a fixed amount to each member is not a class gift under the RAP. "$1000 to each of my great grandchildren, whether born before or after my death" is a gift to EACH grandchild, not a class gift.
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effects of covenants in the true owner's deed on the adverse possessor
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if the adverse possessor uses the land inviolation of a restrictive covenant, he takes free of the restriction. if his adverse possession complies with the covenant, he takes title subject to the restriction.
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docrine of waste
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a life tenant is entitled to ordinary uses and profits of the land, but can't do anything that would injure the remainder. a future interest holder can sue for damages or enjoin such acts.
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adverse possession
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title to real property can be obtained by tresspass for longer than the statutory period. if owner does not take action to eject within that time, title vests in the possessor.
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rights of co-tenants:
possession |
each has the right to possess all parts of the property but doesn't have exclusive possession of any part. a co-tenant out of possession can't sue unless he was "ousted."
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disclaimers of liability
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a general disclaimer will not overcome liability for fraud, concealment, or failure to disclose. disclaimers for specific defects (seller is not liable for defects in the roof) will probably be upheld.
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class gifts
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to a class; children, nepwhews, etc. a class closes when any member of the class can call for distribution. people in the womb are included in the class.
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voidable deed
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executed by minors or incapacitated people, and those obtained by fraud in inducement, duress, undue influence, mistake, and breach of fiduciary duty.
(where joint tenant forges other tenant's signature, HIS transfer is valid; theirs isn't. |
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statutory special warranty deed
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in many states, use of the word "grant" in a deed creates by implication 2 limited assurances against acts of the grantor:
-that the grantor has not conveyed the same estate or any interest therein to anyone other than the grantee -that the estate is free from encumbrances by the grantor. |
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marketable title
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every contract contains an implied warranty that the seller will provide marketable title (free from doubt)at closing. can't be questions that present an unreasonable risk of liitgation.
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fee simple determinable
(and possibility of reverter) |
terminates upon happening of stated event and AUTOMATICALLY reverts to the grantor. can be conveyed, but grantee takes subject to POSSIBILITY OF REVERTER, or termination by the specified event. to A "as long as," "for so long as," "until," "while," or "during."
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tender of performance on a land sale contract
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buyer's and seller's obligations are concurrent obligations. no one is in breach until the other tenders performance. if neither tenders, the closing is extended until one of them does. (a party doesn't have to perform if the other repudiates or it is impossible, like unmarketable title that can't be cured).
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when grantor gives deed to a 3rd party with conditions
(commercial transaction) |
a valid conditional delivery occurs when a grantor gives a deed to a 3rd party with instructions to give it to grantee when certain conditions occur (like if gantee pays purchase price before a certain date).parol evidence is allowed to shoe that delivery is conditional. grantor can revoke only if condition has not yet occurred and there is no enforceable written contract to convey. even if grantee wrongfully gets hold of deed from 3rd party before condition occurs, title does not pass. if justice requires, passage of title may relate back to when deed went to 3rd party.
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remedies for breach of sales contract
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damages (difference between contract price and fmv on date of breach, plus incidental costs.) if land is unique, specific performance
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RAP and executory interests following a defeasible fee
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"to A for so long as no liquor is served, then to B" violates the RAP and the executory interest is stricken, because it could vest after 21 years. B has no interest, A has fee simple determinable, and grantor has a reversion.
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when is time of the essence
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-if the contract so states,
-if circumstances show that it was the intent of the parties, or -one party gives the other notice that time is of the essence. |
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tenancy for years
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a tenancy for a fixed period. must be in writing if over a year. ends automatically on end date. landlord usually has a right of entry in case tenant breaches any covenants. lease can be surrendered if landlord accepts (S/F applies to surrender.)
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description of land conveyed
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itm ust prvide good lead to the identity of the property. parol evidence is admissible to resole some ambiguity, but not if the whole description is inadequate.
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indefeasibly vested remainder
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created in an existing and ascertained person. not subject to a condition precedent. remainderman can have immediate possession upon normal termination of preceeding estate. not subject to divestment or dimunution.
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time of marketability
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avoid answers that refer to the implied warranty of marketability after the lcosing has already occured. once closing occurs and deed changes hands, the seller is no longer liable for that; he's only liable for promises made in the deed.
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recording
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at common law, if a grantor conveyed the same property twise, the grantee first in tile usually prevailed. the recording acts change that outcome under certain circumstances.
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when RAP period begins to run
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for interests granted by will - on date of testator's death.
by deed - date of delivery. by irrevocable trust - date of creation. recovable trust - date it becomes irrevocable. |
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rights of co-tenants:
rents and profits |
a co-tenant in possession has the right to retain profits from her own use of the property. she doesn't have to share unless it's RENT from a 3rd party or profit from land exploitation, like mining.
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doctrine of worthier title
(rule against remainder in grantor's heirs) |
a remainder in the grantor's heirs is invalid and becomes a reversion in the grantor. only applies to inter vivos transfers and if the worh 'heirs' is used.
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class gifts - "bad as to one, bad as to all"
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if any class members' gifts violate the RAP, the whole class gift fails. for the class gift to vest, the class must be closed and all conditions precedent satisfied for every member.
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renunciation of life estate
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if a life tenant receives estate through intestacy or will and renounces his interest, the future interest will accelerate and become immediately possessory.
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when grantor gives deed to a 3rd party with conditions
(donative transaction) |
when deed goes to a 3rd party to give to a donee when a condition occurs, the grantor can't revoke unless the condition is his death.
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fee simple subject to an executory interest
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if a fee simple estate terminates upon happening of a stated event but then passes to a 3rd PARTY and not back to the grantor, the 3rd party has an executory interest.
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periodic tenancy
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successive periods until terminated bt proper notice by either party. create by express agreement, implication, or operation of law.
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executory interests
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future interests in 3rd parties that have either springing or shifting interests. they are not vested and ARE SUBJECT to the RAP.
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joint tenancy
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must take identical interests at the same time by the same instrument with the same right to possession. there is a right of survivorship.
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life estate
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measuerd by the life of one or more people. "to A for life," or "to B after the life of A."
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tenancy at will
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create by express agreement that the lease can be ended at any time. terminate without notice by either party or by operation of law.
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"lives in being"
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unless other measuring lives are specified, one connected with the vesting of the interest is used. any lives can be measuring lives as long as they are human and of reasonable number.
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quitclaim deeds
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a quitclaim deed releases WHATEVER INTEREST teh grantor has. no covenants of title are included or implied.
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fee tail
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inheritability is limited to lineal heirs. created by "to A and the heirs of his body." most states abolish this; attemt to create one will create a fee simple estate.
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effect of recording unacknowledged instrument
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since an unaknowledged instrument is not entitled to recordation, it does NOT give constructive notice. a subsequent grantee must have actual notice of a deed (discover it ina title search)to be bound by it. BUT where acknowledgement is DEFECTIVE for reasons not apparent on the face of the instrument, it still gives constructive notice.
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springing interests
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follows a gap in possession or cuts short a grantor's estate.
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estoppel by deed
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if the grantor tries to convey an estate in property that she oes not then own, her subsequent acquisition of the estate will go to the grantee. this applies where the conveyance was a warranty deed or where the deed purported to convey a particular estate. IT DOESN"T APPLY TO QUITCLAIM DEEDS.
title only goes to the grantee if it's against the grantor. if grantor transfers her later-acquired title to a bfp for value, the bfp will winn over the original grantee. the original grantee can accept title or sue for damages for breach of covenant. |
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life estate pur autre vie
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measured by the life other than the grantee's. "to A for the life of B."
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acceptance of delivery of a deed
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acceptance by grantee is required in order to complete a conveyance. most states presume acceptance. it relates back to the date the deed was delivered into escrow.
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future interests
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gives its holders the right or possibility of future possession of an estate, it is a PRESENT, legally protected property right.
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co-tenant expenses for preservation of the property
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each tenant can get her fair share of repairs and taxes, but not improvements.
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defeasible fees
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fee simple estates that can be terminated upon happening of a stated event.
-fee simple determinable -fee simple subject to condition subsequent -fee simple subject to an executory interest. |
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notice statutes
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a subsequent BFP (person who pays value and has NO NOTICE of the prior instrument)prevails over a prior grantee who failed tp record. the key is that the subsequent purchaser has no actual or constructive notice at the time of the conveyance. (it doesn't matter if/when the subsequent BFP records or if the prior grantee recorded before the subsequent one does.)
a subsequent BFP is protected REGARDLESS OF WHETHER SHE RECORDS AT AL |
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charitable trusts
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must have a charitable purpose. must have indefinite beneficiaries and a court can choose an alternative charity if the settlor's purpose becomes impractical. RAP does not apply (but it does apply toa shift from private to charitable and vice versa.
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covenants for title and estoppel by deed
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there are 3 types of deeds used to convey property interests other thab leaseholds:
-general warranty deed -special warranty deed -quitclaim deed. the difference is the scope of title assurance. (don't confuse covenants for title with real covenants. they are totally different - real covenants don't relate to title.) |
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permissive waste
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occurs when a life tenant fails to preserve or protect the land. life tenant must:
-keep land and structures in reasonable repair, -pay interest on mortgages, but not principal, -pay ordinary taxes, and -pay special assessments for public improvements of short duration. |
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rule against restraint on alienation
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generally, any retriction on the transferability of a legal interest is void.
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rule in shelley's cane
(rule against remainders in grantee's heirs) |
has been abolished in most states. if the same instrument creates a life estate in A and gives the remainder to A's heirs, the remainder is not recognized and A takes the life estate and the remainder.
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chattels incorporated into structure
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when items are so incorporated that they lose their identity (bricks, concrete) they are fixtures. so are items whose removal would cuse considerable damage (plumbing, heating ducts.)
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retention of interest by the grantor OR conditional delivery
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retention of control or interest by the grantor indicates a lack of intent to pass title. (like toe tight to revoke). if a grantor executes a deed but doesn't deliver it during his lifetime, no title passes. (except if there's an express condition that title passes on his death). failure to record a DELIVERED deed does not affect passage of title even if the parties think it does. if a deed is absolute on its face but is delivered with an oral condition, the oral condition is void.
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affirmative (voluntary) waste
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exploitation of natural resources (oil) by life tenant is limeted to where:
-necessary for repair or maintenance, -the land is ONLY suitable for that use, or -it's expressly permitted by grantor |
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tenancy in common
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a concurrent estate with no right of survivorship. they can hold different interests, but each may enjoy the whole. they are transferable, devisable, and inheritable.
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fertile octogenarian
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a woman can have kids no matter her age or condition.
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rights of co-tenants:
encumberance of the property |
any tenant but one by the entirety can encumber his interest with a mortgage or a lien, but not his co-tenants' interests. it won't sever a joint tenancy uinless it's a foreclosure sale. (in a joint tenancy, if the mortgages tenant dies, the other tenant isn't responsible for the mortgage or lien.)
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are reversions vested or subject to RAP?
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they are vested; thus, they are not subject to RAP.
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recording acts in general
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recording acts generally protect all bfp's from SECRET interests previous;y created and provide a mechanism for "earlier" grantees to give notice through recordation.grantees should record their deeds to put subsequent grantees on notice. it's not essential to validity between grantee and grantor, but it is essential to protect from future bfp's. proper recordation gives CONSTRUCTIVE NOTICE of he 1st conveyance to everyone, so that there can be no subsequent bfp's. any instrument creating of affecting an interest in land can be recorded, provided it's acknoqledged by the grantor before a notary public.
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landlord-tenant fixture problems
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if there's an agreement controlling whether an added chattel is a fixture, look to that. if not, a tenant is deemed to lack intent to permanently improve property, and may remove it if it won't cause too much damage. they must be removed by the end of the lease or a reasonable time afterwards. tenant muct repair damage caused by removal.
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severance of a joint tenancy
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-an inter vivos conveyance
will destroy the tenancy. -a will won't destroy it. |
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landlord duty to deliver possession of the premises
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landlord must put tenant in actual possession at the beginning of the lease term. landlord is in breach if he hasn't evicted a holdover tenant at this point.
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delivery of a deed
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delivery refers to the grantor's intention to make a deed presently effective even if possession is postponed. delivery can be satisfied by manual delivery, notarized acknowledgement by the grantor, recording, or anything else showing the grantor's intent to deliver. parol evidence is admissible to show the grantor's intent.
title passes on delivery and can not be taken back or canceled. (if a grantee RETURNS a deed to the grantor, it has NO EFFECT. he has to draw uup a new deed and reconvey.) |
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license
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-a non possessory interest
-permission to go onto another's land ("O allows the electrician to come ontl his land and fix an outlet") -writing not required (an invalid oral easement s a license) -usually revocable at will, but may be irrevocable if coupled with an interest or if licensor is estopped by licensee's expenditures |
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when grantor gives deed to a 3rd party with no conditions
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if grantor gives deed to a 3rd party with instructions to give to grantee, delivery is valid.
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waiver of covenant against assignment
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a valid covenant against assignment is considered waived if the landlord was aware of the assignment and did not obect. (by knowingly accepting rent from assignee, etc.)once landlord waives, it's waived as to future transfers, eoo, unless he expressly reserves it.
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3 types of restraints on alienation
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-disabling restraints (any
transfers at all are void) -forfeiture restraints (any attempted transfer forfeits the interest) -promissory restraints (an attempted transfer breaches a covenant) |
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landlord remedy when tenant is on premises but won't pay rent
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landlord can evict or sue for rent. at common law, he can get damages but not eviction; now he can get either under "unlawful detainer" statute. tenant can't raise counterclaims - the only issue is whether tenant is still in possession.
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the hold-over doctrine
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if a tenant stays in possession after his right to do so ends, the landlord may:
-evict him, or -bind him to a new periodic tenancy. old terms govern new lease. if landlord tells tenant before lease expires that rent is going up, and tenant stays, he must pay higher rent. (watch for where it's only a hold-over of a few hours, where delay is not tenant's fault, or it's a seasonal lease - no binding to a new tenancy here.) |
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anti-lapse statutes that look at the degree of relationship to the testator
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many anti-lapse statutes only apply when the named beneficiary is a DESCENDANT of the testator. other apply if they're more remotely related. others apply to any relative, and others to anyone at all. the statute doesn't SAVE the gift for the predeceasing beneficiary's estate; it substitutes descendants FOR the eneficiary. (property can NEVER pass to a predeceasing beneficiary's spouse because he is not a descendant.) if the beneficiary is dead when the will is EXECUTED, the gift will fail. anti-lapse does not apply if there is a contrary will provision (he gift is contingent on the beneficiary surviving the testator).
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dedication of land
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land may be transferred o a public body by dedication. an offer may be made by written or oral statement, submission of a map or plat showing the dedication, or opening the land for public use. to be effective, the dedicationmust be accepted by formal resolution, approbval of map or plat, or actual assumption pf maintenance or improvements.
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sale-leaseback
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a landowner may sell her property for cash and then lease it back from the purchaser for a long period of time. like an asolute deed, this can be treated as a disguised mortgage.
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race statutes
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under a pure race statute, whoever records first wins. notice is irrelevant. (only 2 states have this.)
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duty to not use leased premises for illegal purposes
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landlord can terminate the lease or obtain damaghes and an injunction. occasional unlawful conduct by tenant does not breach this duty.
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covenants in a general warranty deed
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the usual covenants are: -covenant of seisin (grantor covenants that she has the estate she is conveying. she must have title and possession.) -covenant of right to convey grantor covenants that she has the authority to make the grant. title alone satisfies this covenant.)-covenant against encumbrances (no physical or title encumbrances like encroachments, mortgages,etc.)-covenant for quiet enjoyment (grantee won't be disturbed in possession by a 3rd party's LAWFUL claim of title.)-covenant of warranty grantor agrees to defend against reasonable claims of title by 3rd parties and to compensate for any loss sustained by 3rd party's claim of superior title.)(warranty and quiet enjoyment are identical)-covenant for further assurances (grantor will perform acts reasonably neseccary to perfect title conveyed.
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modern trend concerning landlord's general duty of reasonable care
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he will be liable for injuries resulting from ordinary negligence if he had notice of the defect and an opportunity to repair it.
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tenancy at sufferance
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arises when a tenant wrongfully remains in possession after the expiration of a lawful tenancy. lasts until landlord takes steps to evict. no notice of termination required.
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condemnation of leasehold
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if the entire leasehold is taken by eminent domain, tenant does nt have to pay rent any more. he is entitled to cmpensation. if the taking is temporay or partial, the tenant still must pay rent , but he's entitled to compensation for the taking.
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requirements for burdens to run on real covenants
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if these reequirements are met, successors in interest will be bound by the covenant:
-intent (covenanting parties intended that successors would be bound) -notice (subsequent purchaser for vale had actual, inquiry or record notice at time of purchase -horizontal privity (between original parties -some shared interest in the land independant of the covenant) -vertical privity -"touch and concern" the land. |
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tort liability of landlord for public use
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landlord is liable for injuries to the public if, at time of lease, he:
-knows or should know of a dangerous condition, -has reason to believe the tenant may admit the public before repairing the condition, and -fails to repair the condition. |
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real covenants
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a writtem promise to do something on the land or promise not to do something. they run with the land at law; subsequent owners may enforce or be burdened by the covenants. usually found in a deed.
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easement in gross
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holder acquires aright to use the servient tenement independent of his possession of other land. benefits the HOLDER rather than the PARCEL. an easement for the holder's personal pleasure (right to swim on the pond on blackacre) is not transferable, but one that serves an economic or commercial interest (right to erect billboards on blackacre) is transferable.
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irrevocable licenses
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a license is irrevocable when:
-estoppel (when a licensee invests alot of money in reliance on license, the license becomes an easement by estoppel and lasts until the holder is reimbursed) -license coupled with interest (irrevocable as long as the interest lasts) |
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ademption of land under an executory contract
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most states don't apply ademption to the proceeds of a contract for the sale of land was executory upon the testator's death (the devisee GETS the proceeds in place of the land). ademption takes precedence over the doctrine of equitable conversion. ademption does not apply when the contract is entered into by the representative of an incompetant testator.
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security deposits
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landlord can not keep a security deposit beyond damages actually suffered.
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installment land contract
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an installment purchaser obtains legal title only when the full contract price has been paid off. forfeiture clauses, allowing the vendor upon default to cancel the contract, retake possession, and retain all money paid, are common.
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crops (emblements)
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the conveyance of land includes all crops ggrowing on it. however, excptions exist for
-crops that have already been harvested or severed from the land, and -crops planted by a tenant during the term of her tenancy. for title of crops to remain in the tenant, the tenancy must have been of uncertain duration and have terminated without fault of the tenant. |
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other proceeds not subject to ademption
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when property is damaged or destroyed before the testator's death but the insurance proceeds are not paid until after his death, ademption doesn't apply and the beneficiary of the bequest will get the insurance money. same with property taken by the government before death with payment made after death.
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tort liability of landlord for concealed dangerous conditions
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when lease is entered in to, if landlord knows or should know of a dangerous condition that the tenant wouldn't discover upon reasonable inspection, he must DISCLOSE it; not repair it. otherwise, he is liable ofr injuries. if tenant accepts premises after disclosure, she assumes the risk for herself AND OTHERS.
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transfer by mortgagor - grantee takes subject to mortgage
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a grantee of mortgages property takes the land subject to the mortgage. if he signs an asusmtion agreement, he becomes primarily liable to the lender, while the original mortgagor becomes a surety. if no assumption agreement is signed, the grantee is not personally liable and the original mortgagor is. but, if the grantee doesn't pay, the mortgage can be foreclosed, wiping out the grantee's interest.
once grantee assumes the mortgage, any modification by the grantee and original mortgagor discharges the original mortgagor of all liability. |
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wills
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another way to convey property is through a will.
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assignment by landlords
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a landlord can assignn the rents and his future reversion, usually by deed when he conveys the building to a new owner. tenant's consent is not required. landlord's burden by covenants run to the assignee, and BOTH assignee and original landlord are laible for lal the covenants in the lease.
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transfers by mortgagee and mortgagor
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all parties to a mortgage or a deed of trust may transfer their interests. the note and mortgage must pass to the SAME PERSON for the transfer to be complete.
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tort liability of landlord for repairs
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if landlord undertakes repairs, he owes a duty of reasonable care. he also has a duty of reasonable care in maintaining common areas (halls, elevators). if he covenants to repair or has a statutory duty to do so, he is liable for injuries resulting from his failure.
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affirmative and negative easements
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affirmative - holder can make affirmative use of the servient tenement.
negative - holder can compel possessor of servient estate to refrain from doing something on that estate (building over 3 stories, etc.) this is confined to four things: light, air, later and subjacent support,and flor of artificial stream. negative easements are actually restrictive covenants. |
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implied warranty of habitability
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inplied into RESIDENTIAL leases. this is NONWAIVABLE. if landlord breaches, tenant may terminate, make repairs and offset cost against future rent, abate rent to fair rental value in view of defects, or just sue for damages. (this does not apply to commercial tenants.)
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types of security interests in real estate
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-mortgage
-deed of trust -installment land contract -absolute deed -sale-leaseback |
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deed of trust
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the person in debt is the trustor. he gives a deed of trust to a 3rd party trustee, who is usually closely cinnected with the lender (the beneficiary). on default the lender tells the trustee (3rd party) to foreclose the deed of trust by sale.
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consequences of an asisgnment
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assignee stands in shoes of original tenant. each is liabile to eachother on covenants running with the land (need intent of original parties and "touch and concern" land. assignee owes rent to the landlord. after assignment, original tenant is not in privity of estate with landlord but is still liabile on original contract obligation to pay rent.
if the assignee assigns to someone else, he is no longer liable to pay rent |
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quiet enjoyment
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every lease has an IMPLIED COVENANT that neigher the landlord nor a paramount title holder (prior mortgagee) will interfere with the tenant's quiet enjoyment and possession. breach occurs by:
-actual eviction -partial eviction -constructive eviction (when landlord fails to do something he has a duty to do.) |
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benefits of "holder in due course" status
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he takes the note free of any personal defenses of the maker (failure of consideration, fraud in inducement, waiver, estoppel, etc.) but is still subject to real defenses (infancy, incapacity, forgery, etc.)
if possession of the note has been transferred by the original lender/mortgagee, any payment to that mortgagee won't count. the new holder of the note can still demand payments, even if the mortgagor paid the original mortgagee. the noew note holder can foreclose on the mortgage - the payment is no defense, even if the mortgagor had no notice of the transfer. |
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due on sale clauses
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due-on-sale clauses, which appear in most modern mortgages, allow the lender to demand full payment of the loan if the mortgagor transfers any interest int he property without the mortgagee/lender's consent.
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exoneration
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at comon law and in most states, the devisee of specific property is entitled to have the land "exonerated" by the payment of liens and mortgages from the testator's residuary estate. there is a growing trend to abolish the exoneration doctrine.
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creation of easements
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they can be created by:
-espress grant (in writing and signed by holder of servient land unless for under a year, must comply with formal requirements of a deed) -express reservation (when grantor conveys title but reserves a right to continue to use land for special purpose; but he can't reserve it for someone else) -by implication (implied from existing use; without any existing use, its an easement by necessity) -by prescription (like adverse possession) |
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absolute deed
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an absolute deed, if given for security purposes, can be treated by the court as an equitable mortgage and is treated like any other mortgage (creditor must foreclose by judicial action).
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covenant to make repairs
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if tenant covenants to make repairs, he'll have a higher duty than that implied by waste.
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fixtures
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a fixture is a chattel that has eben so affixed to land that it has ceased being personal property and has become part of the realty.
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possession before foreclosure
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when a mortgagor defaults on his debt, the mortgagee can foreclose. mortgagee can take possession of the property or begin receiving the rents from the property BEFORE foreclosure.
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duty to pay rent
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ife lease ende before the time originally aggreed upon, tenant must pay a proportionate amount. if tenant effectively surrenders his lease, the duty to pay rent ends.
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profit
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-a nonpossessory interest
-right to take resources from another's land -"O allows A to come onto O's land to cut and remove timber" -writing is required -terminates same as easement implied in every profit is an easememt to allow holder to enter the land and remove the resources. |
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method of transferring a note
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a note can be transferred by either endorsing it AND delivering it to the transferee, or by a separate document of assignment. only if the ENDORSEMENT and delivery method is used can the transferee become a holder in due course. to be a holder in due course, these requirements must be met: the note must be NEGOTIABLE IN FORM (payable to "bearer", etc.)/the note must be endorsed and signed by the named payee / it must be delivered to the transferee / transferee must take the note in good faith (no notice that it's overdue, has been dishonored, etc.) and must pay value for it.
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transfer by mortgagee (lender) of a mortgage without note
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in some states, when the mortgage is transferred, the note is transferred automatically, unless mortgagee expressly reserves rights to the note. in these states, the person to whom the mortgage goes can file an equitable action to compel transfer of the note, also. other states hold that, since the note is the principal evidence of the debt, a transfer of the mortgage without the note is void.
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lapse and anti-lapse statutes
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a lapse occurs when the beneficiary of a gift in a will dies before the testator. under common law, the gift is void. under statute, however (which most states have)the gift will pass to the predeceasing beneficiary's living descendants under certain circumstances. these statutes vary as to the scope of beneficiaries covered.
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landlord tort liability for furnished short-term residences
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landlord who rents fully furnished premises for a short period is under a stricter duty. he's liable for injuries resulting from ANY defect whether or not he knoew about it.
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landlord duty to repair or maintain the premises
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he generally has no duty to do so, unless it is imposed somewhere else.
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easement
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-nonpossessory interest
-a grant of an interst in land that allows someone to use another's land ("owner of parcel A lets owner of parcel B the right to drive across parcel A") -writing required unless for less than one year or an easement by implication, necessity or prescription -terminates upon happening of stated conditions, release, merger, abandonment, estoppel, prescription, end of necessity. |
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retaliatory eviction
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a landlord can not terminate a lease or penalize a tenant for exerecising her legal rights. retaliatory move is PRESUMED if it 90-180 days from tenant's exercise of rights. to overcome, landlord must show a valid, nonretaliatory reason for his actions.
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landlord remedy when tenant abandons
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if tenant unjustifiably abandonds, landlord must mitigate damages by trying to re-lease the property. tenant's liability depends on whether landlord accepts the surrender - if no, tenant pays difference between his rent and fmv (or rent from re-leasing); if yes, no rent is due from when surrender was accepted. (surrender is found when landlord resumes his possession of the property.)
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mortgage
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the notemaker/debtor is the mortgagor. the lender is the mortgagee. on default, the lender can realize on the mortgages estate by having a judicial foreclosure sale conducted by the sheriff (sheriff's sale).
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license v. easement
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a license privileges its holder to go on the land of another, but it is not an interest in land. it is only a privilege, revocable at the will of the licensor. a license is personal to the holder and not transferable. any attemt to transfer a license results in revocation by operation of law.
a failed attempt to create an easement results in a license (if you try to create an oral easement for over a year, you have a license.) |
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ademption
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if property is specifically devised or bequeathed in the testator's will but the testator no longer owns it at the time of his death, the property is adeemed and the gift fails. ademption applies only to specific bequests which can be satisfied only by the delivery of a particular item; they can not be satisfied by money. a gift of land is always a specific devise. if the testator specifically devises property and then sells or gives away a part of that property, only that portion is adeemed; the remainder passes along to the devisee.
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covenants against assignment or sublease
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strictly construed against LANDLORD. covenant prohibiting assigning does not prohibit subleasing and vice versa.
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transfer in violation of a lease
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if a tenant assigns or sublets in in violation of lease provision, the TRANSFER is not void, but the landlord can terminate the lease or sue for damages.
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assignments and subleases
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absent express restrictions, a tenant can freely transfer her leasehold interest in whoe or part. a complete transfer is an assignment, partial is a sublease.
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theories of title
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the mortgagee may have a right to take possession before foreclosure, depending on what theory the state follows. most states follow the title or the lien theory.
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transfer of mortgagee (lender) of a note without the mortgage.
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the note CAN be transferred without the mortgage, but the mortgage will automaticaly follow the properly transferred note, unless the lender expressly reserves rights to the mortgags. no separate written assignment of the mortgage is necessary.
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consequences of a sublease
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sublessee pays rent to the original tenant who then pays the landlord. sublessee is not personally liable to the landlord. if landlord terminates the main lease, the sublease ends also. if landlord places lien on property on the premises, the tenant and sublessee's property is susceptible. sublessee can not enforce any covenants in the ain lease, except the implied warranty of habitability.
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easement appurtenant
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benefits the holder in his physical use or enjoyment of another tract of land. there must be 2 tracts: dominant and servient. it passes with transfer of the dominant land, regardless of whether it's mentioned in the conveyance. burden passes w servient estate UNLESS new owner is a bona fide purchaser with no actual or constructive notice oft he easement. it can't be conveyer apart from the dominant tenement unless it's conveyed to the servient tenement to kill the easement.
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