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185 Cards in this Set
- Front
- Back
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Is this valid:
"To A, but if A ever sells the property then to B" |
No - restraint against alienation
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Is a right of first refusal a valid restraint on alienation?
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Yes
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Duty of a Life Tenant
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to main the estate, meaning to continue the normal use of the land in present condition
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Three types of Waste
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- voluntary
- permissive - ameliorative |
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Voluntary Waste
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any affirmative action beyond the right of maintenance causing HARM to the property
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Open Mines Doctrine
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depletion of a natural resource is OK for a life tenant if that was the original use of the land
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Permissive Waste
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occurs when tenant has failed to maintain the property
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Three things to avoid Permissive Waste
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- repair
- taxes - interest |
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Limitation on Life Tenant's Liability
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- income received from land OR
- the reasonable rental value of the land |
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Ameliorative Waste
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a special voluntary waste that occurs when the affirmative act of the LT alters the property substantially but INCREASES its value
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Can a life tenant tear down an old mansion if the FI objects?
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yes - if changed conditions have made the property worthless in its current use
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Is a ROE alienable?
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No
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May a holder of an Executory Interest sue a LT for waste?
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No
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Which 3 estates are subject to RAP?
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- CR
- EI - VRSTO |
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When is the validity of a grant determined for purposes of RAP?
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time of creation (note for a will - when the T dies)
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RAP (define)
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No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest
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Charity to Charity Exception
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- not subject to RAP
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Two characteristics of JTWROS
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- right of survivorship
- right to partition |
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Four Unities needed to create JTWROS
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- time
- title - interest - possession |
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Two ways to destroy JTWROS
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- partition (voluntary)
- severance (involuntary - destroys one the TTIPs) |
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Four Ways to Sever JTWROS
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- conveyance by one JT
- mortgage (in title theory) - contract of sale (occurs when signed) - creditor sale (occurs at sale) |
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Two Characteristics of TIC
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- right to partition
- no right of survivorship |
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One unity of TIC
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possession
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Rights and Duties between or among TIC (3)
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- possession
- accountability - contribution |
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Possession as applied to TIC
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each co-T has the right to possess all the property consistent with the other co-T's rights to also possess it
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Accountability as applied to TIC
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requirement that one co-T may have to account to another for a share of profits of the co-T (General Rule: No)
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Four Exceptions when a TIC must account to other co-T's
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- ouster
- agreement to share - lease to a 3P - depletion of natural resources |
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Contribution
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right of one co-T to force others to pay their share of some expenditure a co-T made
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Contribution available for (3)
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- mortgages signed by all co-T
- repairs - taxes |
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Four Landlord-Tenant Estates
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- tenancy for years
- periodic tenancy - tenancy at will - tenancy at sufferance |
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SoF for leases
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leases over 1 year need be in writing
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Periodic Tenancy
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an ongoing, continuing, repetitive estate, until one party gives valid notice (mo-mo, yr-yr)
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Three ways to create Periodic Tenancy
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- express agreement
- implication - operation of law |
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How a periodic tenancy is created by implication
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lease is silent as to duration
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Two situations which causes a periodic tenancy to be created by operation of law
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- oral lease violating SoF
- hold-over tenant (periodic as to when rent is due) |
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Two elements to end periodic tenancy
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- time (equal to period)
- effective day (last day of period) |
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When can a Tenancy at Will be terminated?
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anytime by either party - no notice
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Other than notice, FIVE was to terminate Tenancy at Will
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- death of either party
- waste - assignment by T - transfer of title for L - lease by L |
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Two actions a Landlord may due for a Tenancy at Sufferance
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- hold T as trespasser
- impose a new periodic tenancy |
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Rule for periodic tenancy imposed on a tenancy at sufference
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- residential (mo-mo)
- commercial (year or more is y-y or if less, than measured by rent period) |
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Raising Rent on Tenancy at Sufferance
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may be raised if T was informed of higher rent before expiration of lease and T holds over after expiration
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GR for T's Duties (2)
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- pay rent
- not commit waste |
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Effect of "repair and maintain" clause
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T is liable for ALL damage including even ordinary wear and tear
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T's right on destruction of premises
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termination of lease
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L's remedies for a T not paying rent (2)
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- sue for damages
- throw T off property |
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L's choices (2) if T unjustifiably abandons leasehold
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- treat as surrender
- re-rent and hold T for any deficiency |
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L's duties (3)
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- give possession when lease BEGINS
- deliver residence in a habitable condition - implied covenant of quiet enjoyment |
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Ways L can breach (3)
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- total eviction
- partial eviction - constructive eviction |
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Total Eviction
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terminates lease and ends T's obligation to pay rent
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Partial Eviction
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does not terminate lease, T may stay and pay NO rent
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Partial Eviction but not by L
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prorated rent
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Constructive Eviction
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L fails to provide a service he is supposed, thus making premises uninhabitable
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Three Requirements to excuse T under Constructive Eviction
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- L has to do it
- substantial interference - must be an abandonment within a reasonable time of brief |
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Assignment
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T transfers lease, holding nothing back
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Sublease
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T transfer a PORTION of the lease period
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Lease is both a (2)
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- conveyance
- contract |
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Liability of the conveyance comes out of...
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Privity of Estate
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Liability on the contract comes out of ...
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Privity of Contract
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Under Assignments when is T liable?
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EITHER privity of contract OR privity of estate
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Privity of Estate exists between...
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Present L and Present T
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Privity of Contract exists...
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where there is an agreement between the parties, or where assignee EXPRESSLY ASSUMES the obligations under the lease
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L leased to T1, later T1 assigned to T2, later T2 assigned to T3
Liability for rent in a suit by L against T1 AFTER T1 has assigned to T2? |
L wins, privity of contract
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L leased to T1, later T1 assigned to T2, later T2 assigned to T3
Liability for rent in a suit by L against T2 BEFORE T2 has assigned to T3? |
L wins, privity of estate
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L leased to T1, later T1 assigned to T2, later T2 assigned to T3
Liability for rent in a suit by L against T2 AFTER T2 has assigned to T3? |
T2 wins, no privity of contract or estate
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When do Covenants Run with the Land?
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if they touch and concern the land
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Touch and Concern Test
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if performance of a covenant makes the land more valuable or more useful, then it meets the Touch and Concern test
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L sells to successor L2, can T sue L and L2 on the lease?
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T can sue L because of privity of contract
T can sue L2 provided lease covenant runs with land and there is EITHER privity of contract or privity of estate |
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Is a Sublessee liable to L?
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No because no privity of contract and no privity of estate
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Are Non-assignment clauses enforceable?
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Yes, but they are construed narrowly (e.g., will not enforce against sub-leases)
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What is the effect of L's giving permission for an Assignment?
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permission given once, WAIVES for all time
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Effect of Acceptance of Rent by a L after a non-assignment clause is broken
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waiver
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Does a PARTIAL TAKING (condemnation) release T from obligation to pay rent?
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No, but T gets an amount equal to the rent that will have to be paid for the portion taken (pro rata)
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Effect of a Full Taking (condemnation) (2)
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- extinguishes the lease
- T shares in the condemnation award only to the extend that the fair rental value of lease exceeds the rent due under the lease (benefit of bargain) |
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L tort liability (GR)
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no duty to T or T's invitees
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Five exceptions to L tort liability
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- latent defects (disclose)
- short term lease of furnished dwelling (knows or reason to know) - common areas under L's control (use reasonable care) - negligent repairs - public use exception |
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Public Use Exception (3)
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- L knows or should know of major defect
- L knows or should know that T will not fix the defect - L must know or should know the public is using the premises |
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T's Liability (GR) in Tort
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T is always liable to 3P invitees for negligent failure to correct dangerous conditions on the premises, regardless of whether L may be contractually liable or not
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Fixture Rule
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if attached chattel becomes a fixture, it cannot be removed by either seller or tenant
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Key to determine if chattel is a fixture
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Intent
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Fixture Test (4)
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- degree of attachment
- general custom - degree of harm on premises for removal - trade fixtures exception |
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When must a T remove chattel?
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before end of lease
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When must an owner remove chattel?
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before closing
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Definition of Easement
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a non-possessory interest in land involving a right to use
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Two types of easement
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- easement appurtenant
- easement in gross |
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Easement appurtenant
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- directly benefits the use and enjoyment of a specific piece of land
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Easement in gross
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- no dominant estate (e.g., rail road)
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Creation of Easements (3)
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- express (SoF)
- implication - prescription |
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Express Easements
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must be in writing, if longer than one year
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Easements by Implication
Previous use by a common owner: (3) |
- continuous
- apparent and obvious - reasonably necessary |
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Absolute Right of Access (2)
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- an implied easement by necessity exists when property is landlocked
- servient T chooses location |
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Easements by Prescription (4)
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(Adverse Possession)
- adverse to other owner - continuous and uninterrupted - visible and notorious (or with the owner's knowledge) - use must be without permission |
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Transferring Benefit of the Easement
Appurtenant |
goes automatically along with the dominant estate, whether it is mentioned or not and cannot be transferred separately from the dominant estate
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Transferring Benefit of the Easement
In gross |
if commercial it can always be transferred, but personal cannot
(railroad v. fishing) |
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Transferring the Burden of the Easement
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always binding on subsequent holders of the servient estate, even if the easement is not in their deeds, provding the subsequent holder had notice of the easement (DEED or NOTICE)
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Use of easement presumptions (2)
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- perpetual
- reasonable development of dominant estate contemplated when easement was granted |
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Repair of Easement (Holder) (3)
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- reasonable restoration of servient estate after repairs
- must keep in good repair - servient tenant has no obligation to repair |
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Termination of Easements (6)
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- unity of ownership (merger)
- release - abandonment (must be a physical act) - estoppel - prescription - end of necessity |
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Two elements for termination of an easement by estoppel
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- representation of relinquishment by the holder of dominant estate
- change or position in reliance by the holder of the servient estate |
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Is there ever an implied easement of light or air?
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no
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Define License
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limited privilege to use, and a not a property interest - merely a contract right which is revocable at will of the licensor
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Rules for Irrevocable License (2)
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- anytime an easement is attempted but fails due to SoF
- if money is spent on the property in furtherance of the oral license, the license become irrevocable and is just as good as an easement |
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Define Profits
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profit gives the right to go on land and take a natural resource away, along with the profit goes an implied easement to go on the land and get the resource and take away
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Define Restrictive Covenant
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gives the right to restrict someone else's use of the land
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Restrictive Covenants - Two Categories
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- covenants at law
- equitable servitudes |
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Four requirements for covenant to run with the land
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- intent that it run with the land
- notice - touch and concern - privity |
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Horizontal Privity refers to...
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original parties to the covenant
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Vertical privity refers to...
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those who subsequently obtain the property subject to the covenant (successor in interest) and the original party from whom they got the property
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If the successor in interest is the D, then someone is trying to have the XXXX run to that succesor
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BURDEN
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If the successor in interest is the P, then that person is trying to have the XXXX of the covenant run with them
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BENEFIT
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Burden Analysis
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successor-in-interest must have BOTH horizontal and vertical privity
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Benefit Analysis
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successor-in-interest need only vertical privity
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Dick and John agreed on covenant and John sold to Bobby.
Horizontal / Vertical Privity? |
- vertical privity because John conveyed his complete interest of Bobby
-NO horizontal privity because no conveyance from Dick to John or John to Dick |
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Dick own 2 lots and sold one to John putting the covenant in the deed. John sold to Bobby.
Privity? |
Both horizontal and vertical
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John paid for the building of fence and Dick promised to keep it in repair. John sold to Bobby. Bobby sues Dick for damages for Dick's failure to maintain the fence. Result?
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Does the BENEFIT run to Bobby --- even though there is NO horizontal privity - Yes
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John paid for the building of fence and Dick promised to keep it in repair. Dick sold to Jerry. John sold to Bobby. Bobby sues Jerry for damages for his failure to maintain the fence. Result?
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No, because Jerry is a successor-in-interest and her is the D
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Benefit and Burden in a Nutshell (2)
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- if the successor-in-interest is a D, then for P to get damages the burden must run and you need both horizontal and vertical privity
- if the D is not a successor-in-interest, then for the benefit to run to a successor-in-interest P and let P get damages, you need only vertical privity |
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To enforce an equitable servitude (3)
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- intent that it be enforceable by successors-in-interest
- notice to subsequent purchaser - restriction must touch and concern the land NOTE: NO privity analysis |
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Equitable Servitudes in Subdivisions - Mutual Rights of Enforcement (2)
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- intent to create survitude on all the land in the subdivision (common building plan)
- notice |
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Three ways to get notice for equitable servitudes
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- actual notice
- record notice (building plan) - inquiry notice |
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If a recorded subdivision plan has land marked as city parkland, then can the city enforce it?
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yes
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Equitable Defenses to Enforcement of Equitable Servitudes (4)
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- unclean hands
- acquiescence - laches - estoppel |
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If there is a change of condition regarding the last 10 lots on a 100 lot subdivision, may the restriction be lifted for those lots?
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No - all or nothing
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Adverse Possession (HIOCEAN)
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- hostile
- intentional - obvious - continuous - exclusive - actual - number of years |
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Doctrine of Construction for Adverse Possession
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If X entered the property under color of title to 100 acres but actually possessed only 85 acres, elements are met - X obtains 100 acres
- if someone goes on property under color of title to a larger tract, but only actually possesses a part of the larger unit, constructive adverse possession can give title to the rest of the property |
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Requirements for Doctrine of Construction for Adverse Possession (2)
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- the amount actually possessed must bear a reasonable relation to the whole
- the property must be unitary |
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Does leasing property of land to someone else qualify as AP?
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yes
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Adverse possession against concurrent users (ouster)
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can occur only when the possessor excludes the other co-T from possession and the statute runs
(exclusion starts clock running, not mere absence) |
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Tacking (2)
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- can tack periods of AP, but the periods must pass directly from one adverse possessor to another, no gaps
- can also tack periods of true ownership meaning that the adverse possession does not have to be against the owner of the entire statutory period of time |
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Disability wrt AP (3)
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- minor
- insane - in jail |
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When does AP clock start when owner has a disability?
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once that disibility is freed (no tacking)
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Can you adversely possess government land?
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No
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Two steps to conveyancing
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- contract of sale
- closing --- deed! |
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SoF Defined
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any contract of sale of an interest in property must be in writing and signed by the one who is sued (to be charged)
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Three parts of signed writing
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- description
- names of parties - price |
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SoF Exception for Part Performance (2)
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- oral contract must be certain and clear
- the acts of the part performance must clearly prove of a contract |
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Four issues which occur between signing a contract and closing
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- risk of loss (buyer's loss)
- death of party (no effect) - marketable title (clear up encumbrances before closing) - time of performance (closing date is not of essence) |
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Remedies for Buyer if Seller's title is unmarketable (3)
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- recission
- damages for breach - specific performance (price gets lowered) |
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Remedies for Breach of Sales Contract (2)
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- damages (difference between contract price and value on day of breach)
- specific performance |
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Defects on Property (GR)
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buyer cannot recover (caveat emptor)
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Exceptions to GR on defects on property (2)
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- seller must disclose serious defects that the seller actually knows of and are not obvious to the buyer (no hiding)
- there is an implied warranty of fitness of mechantability for NEW homes sold by a builder-seller (narrow) |
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When does sales contract merge with the deed
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upon delivery of deed
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Two requirements for passing or legal title
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- execution
- delivery |
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Does a metes and bounds description trump address?
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yes - trumps everything
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Does delivery of deed mean physical?
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No - key is intent
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Does recording a deed raise a presumption of delivery even if the grantee never sees the deed and knows nothing about it?
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yes
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What is the presumption if grantor dies and still has deed?
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presumption of no delivery (can be rebutted)
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Three types of Conditional Delivery
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- where conditional in deed
- oral condition - making delivery conditional on grantee paying the purchase price |
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Quitclaim Deed
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seller promises nothing
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General Warranty Deed
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grantor makes promises regarding title, the are covenants of tile and deeds with the 6 traditional covenants for title are called general warranty deed
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Two Classes of the Six Covenants of Good Title
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- present
- future |
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Six Covenants of Good Title
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Present:
- covenant of seisen - right to convey - covenant against encumbrances Future: - covenant of quiet enjoyment - covenant of warranty - covenant of future assurance |
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Damages for Breach of Covenant
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damages are limited to purchase price received by the warrantor (may not give P full recovery)
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Estoppel by Deed
(Doctrine of After Acquired Title) |
If A deeds property to B that A does not own, and then A later acquires title, B will get title because grantor gave an implied covenant of title would be transferred to grantee
BUT if the grantor transfers to a BFP after getting title then the original grantee loses and cannot rely on extoppel by deed |
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Is a deed to a dead person valid?
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No
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Three recording acts
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- notice
- race - race-notice |
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Notice Acts
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protect subsequent grantees who are BFPs (recording is irrelevant except as it might give notice)
In statute "without notice" or "in good faith" without "first" |
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Race-Notice Acts
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protect subsequent BFPs who take without notice and are first to record
"without notice" or "in good faith" with "first recorded" or "recorded first" |
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Pure Race Acts
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notice is irrelevant, whoever records first wins
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BFP Definition
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- a bona fide purchaser for value, without notice
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"For Value" - Two Situations
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- bargain-basement price OK (no sham consideration)
- heir, donee, or devisee cannot be a BFP |
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Shelter Rule Exception
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Anyone (even heirs, donees, and devisees) can shelter under a BFP
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"Without Notice" 3 types of notice
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- actual
- record - inquiry |
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Record Notice
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constructive notice that arises from the record (look at chain of title)
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Inquiry Notice - 2 situations
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- where a reading of the deeds on record discloses an unrecorded record
- where subsequent purchaser fails to go out and examine the land |
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"Special" situations treated as mortgage (2)
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- absolute deed (with a separate promise of reconvey - also called an equitable mortgage)
- sale/lease-base with option to purchase |
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Installment Land Contract
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Debtor signs a contract promising to make payments and seller keeps title until the loan is paid off
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Equity of Redemption
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anytime before the foreclosure sale, debtor may redeem by paying amount in arrears (sometime whole mtg too)
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Clogging
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any attempt to waive the right of redemption in the security interest - prohibited
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Forfeiture Clause
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found in installment land contracts - if debtor fails to make a payment, seller can cancel the contract, keep all the money paid, and get the property back (will be enforced)
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Mortgagor Transferring Title
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mortgage just tags along and the transferee takes subject to the mortgage, but the mortgagor continues to have personal liability on the note
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Assumption
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if grantee assumes the mortgage, grantee is then personally liable on it
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What happens if a mortgage which is assumed is changed?
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discharge of original mortgagor
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Days to make a fixture filing?
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20
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Right of Support (2)
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- lateral
- subjacent |
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Lateral Support
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support from the sides - a landowner has the right to land supported by adjoining landowners and STRICT LIABILITY results if land is not supported. Also liable for improvements if the WEIGHT of the improvements did not cause the crash.
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Subjacent Support
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support of the surface from the bottom - STRICT LIABILITY results is surface is not supported
(land and improvements) |
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Are buildings built after mineral rights sold subject to strict liability protection?
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No
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Three types of Water
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- rivers and lake
- underground - runoff / flood |
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Rivers and Lake Rights (2)
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- riparian
- prior appropriation |
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Riparian Rights
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refers to those whose property borders a lake or stream, the owner can use all the water needed for domestic purposes and reasonable use for non-domestic as to no impair quality or quantity of downstream water
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Prior Appropriation
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first in time takes
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Water under the ground (2)
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- reasonable use
- no export |
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Surface Water Theories (2)
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- natural flow
- common enemy |
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Natural Flow Theory for Surface Water
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reasonable steps may be taken to deal with flood water (e.g., drainage pipes)
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Common Enemy Theory for Surface Water
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Can do anything, whether reasonable or not
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