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66 Cards in this Set
- Front
- Back
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Can you put absolute restrictions on alienation of a Fee Simple Absolute?
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No, except for right of first refusal. But limited and reasonable restrictions are possible.
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Can you put restrictions on alienation of a life estate or future estate?
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Yes, but only forfeiture and promissory restraints. No disabling restraints.
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To avoid being charged with permissive waste, what must a life tenant do?
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1. Make repairs (not replace)
2. Pay taxes 3. Pay interest on mortgage But payments need only be to the extent that Life Tenant receives rents -- or to the extent of reasonable rental value if LT is the occupant. If remainderman has to pay, he gets reimbursed from a sale but can't pursue LT personally unless LT actually collected rents. LT doesn't have to pay principal, but if remainderman pays it he can force LT to give up estate or pay a portion of it. |
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When is ameliorative waste ok?
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When changed conditions have made the property relatively worthless otherwise. Or with consent of remaindermen.
Either way, future interests must not be diminished. Not ok if life tenant has short term. |
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RAP applies to which 3 interests?
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1. Executory Interests
2. Contingent Remainders 3. Vested Remainders Subject to Open also applies to options not attached to a leasehold & rights of first refusal |
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Accountability of Co-Tenants: General Rule and 4 Exceptions
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Rule: A co-tenant does not have to account to another co-tenant for his share of the profits
Exceptions 1. ouster--accounting required if one co-tenant is either keeping another off the property or is claiming right of exclusive possession 2. Agreement to share 3. Lease of the property by co-tenant to 3rd party 4. Depletion of natural resources |
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Contribution as to Co-Ownership--Define & Rules
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Necessary repairs--others must pay, some states allow direct recovery and it can always be taken from rents/sale. If in sole possession, contribution is only if in excess of rental value.
Improvements need not be paid for and cannot be deducted from rents unless improvements raised the rent directly, but if the property is later sold, the one who paid for the improvements will get more $$ from the sale. Mortgage and taxes--others are responsible, some states allow direct recovery. But if payor is in sole possession, reimbursement is limited to amounts exceeding rental value of her use. |
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How is Periodic Tenancy created besides expressly? How is it terminated?
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Can be created by implication (period is measured by rent payments), or operation of law (oral lease that violates SoF can turn into periodic tenancy with cashing or rent check), or holdover tenant; proper notice to terminate = the term of the lease or if its a year, 6 months; needs to be in enough time AND on effective date
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Describe Tenancy at Will. Can it be one-sided? What will cause it to terminate?
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Can be terminated at any time without notice. One-sided tenancy at will can favor tenant, but not landlord (2-way would be implied).
Or terminates by operation of law upon --death --waste by tenant --assignment by tenant --transfer of title by landlord --lease by LL to 3rd party |
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What is Tenancy at Sufferance? How can landlord terminate it? Can landlord raise rent?
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Only arises when tenant wrongfully holds over
LL may either sue in trespass to evict and to recover for damages OR to impose a new periodic tenancy (residential = month to month, other = period of rent payment if less than a year. If commercial property and lease was a year or more, new periodic tenancy is year to year) LL can't impose new tenancy if it's unreasonable (e.g., holdover was brief or by necessity) Raising rent--LL can raise rent if he gives notice before expiration of lease. Held-over T deemed to have accepted even if he doesn't. |
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Tenant has duty to pay rent and avoid ameliorative waste unless he's long-term and neighborhood has changed. What are his repair duties ordinarily? What if he covenants to repair?
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Normally, just maintain property exclusive of wear/tear
If lease includes a covenant for T to repair, T must repair everything, even ordinary wear & tear, unless otherwise stated. If property is destroyed w/o fault of T, T may usually terminate the lease and won't be required to rebuild structure, despite common law to the contrary. In residential leases, even if T covenants to repair, L still has obligation. |
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LL Remedies if T unjustifiably abandons
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1. Accept T's offer of abandonment (T has no further rent obligation)
2. Re-let premises and hold T liable for deficiency --common law -- no duty to mitigate --today -- LL must make reasonable effort to mitigate In some states, in residential leases, LL may stand by and do nothing and continue to hold T liable for rent. |
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Duties of Landlord
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--deliver possession right away or else breach. English rule. American is contra.
--modern rule--implied warranty of habitability: applies to residential property only. Can't be waived. Some courts allow waiver of previously known defects. --implied covenant of quiet enjoyment--promise not to interfere w/ T's enjoyment and modernly his responsibility for other tenants who are in violation of lease and could have been evicted. -- but if the disturbance is by claims of paramount title, T can only terminate lease if he discovers before taking possession; afterward he must wait for actual eviction. |
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T's remedies if LL breaches warranty of habitability
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T can move out and end the lease OR stay on the property and sue for damages. Or abate rent. Some courts allow T to stay on and make repairs and deduct from rent
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3 ways in which LL can breach implied covenant of quiet enjoyment
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1. total eviction--LL throws out T--lease is over
2. partial eviction--LL excludes T from part of the premises--T can stay on what's left for free. If 3rd party does the partial eviction, rate is apportioned instead. 3. constructive eviction--LL fails to provide a service that he's obligated to provide and it becomes uninhabitable. T must abandon w/in reasonable time |
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Rules for partial condemnation
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T still must pay rent but they share in condemnation award. Modern trend to let him terminate for significant interference.
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Rules for complete condemnation
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T no longer needs to pay rent and T will get condemnation award only to the extent that the fair rental value of the place exceeds the amount of rent due under the lease
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LL's Tort Liability to Tenant
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General rule is no liability to T (or his invitees) for injury
5 EXCEPTIONS 1. Latent defects from start(k/sk - disclose) 2. short term furnished lease 3. Common passageways - reasonable care 4. Negligent repairs-- LL has to repair pretty much perfectly 5. Public Use--LL must k/sk of defect and that T won't fix and that public will use premises |
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Tenant's Tort Liability
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T is always liable to 3rd party invitee for negligent failure to correct dangerous conditions, regardless of whether LL may also be liable
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How to Determine if something is a fixture
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look at intent, degree of attachment, general custom, damage its removal would cause, whether it's a trade fixture. A unique adaptation may indicate a fixture even if not physically annexed.
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Implied Easement arises (2):
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1. From previous use by a common grantor (one person owns land then sells the part of it that has the easement, the previous owner can keep using it. Previous use must be 1 continuous, 2 apparent, 3 reasonably necessary)
2. Absolute Right of Access Rule--if one landowner is landlocked, he can use and easement on another property if both properties ultimately had the same owner, but the owner of the servient estate can choose the location as long as its reasonable |
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If a Dominant Estate is transferred, does an Easement Appurtenant go with it?
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Benefit is transferred automatically along with the dominant estate whether or not easement is recorded in deed of conveyance. Burden will not run without notice, but there is often inquiry notice.
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Transfer of Easement in Gross
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Commercial easements in gross can always be transferred; personal ones cannot.
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Scope of Easement Use
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Easement is presumed perpetual
Use presumed is that of the reasonable development of the dominant estate (not excessive use, not for additional dominants). If violated, enjoin (not terminate) Servient can relocate modernly if not a material inconvenience. |
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How does need to repair an easement affect rights?
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General rule is that dominant holder must repair and has right of access to repair. He must make reasonable restoration of the servient estate but is otherwise not responsible. Servient holder has no obligation to repair.
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LIST Ways of Termination of Easement (6)
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1. Merger
2. Deed of Release (formal) 3. Abandonment by Action (plus intent) 4. Termination by Estoppel (relinquishment + reliance) 5. Termination by Prescription (blockage for ~20 years) 6. Termination of Necessity Easements (at end of necessity) |
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Characteristics of Irrevocable Licenses:
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If an easement fails because of SoF, a license is created
1. If license results from a failure of easement to meet SOF, and $$ is spent on a property in reliance, then it becomes irrevocable. 2. If license is coupled with an interest, it's irrevocable. |
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4 Requirements to Enforce a Restrictive Covenant at Law
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1. Intent--parties must intend that the restriction run with the land
2. Notice--to the person against whom enforcement is sought (actual, constructive, inquiry). But if person didn't give value, he needn't receive notice. 3. Touch & Concern the Land 4. Privity --Enforcing benefit: P is successor-in-interest of original or lesser estate, and only vertical privity is required. --Enforcing burden: D is successor-in-interest of entire estate and horizontal & vertical privity are required. 5. Signed writing |
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3 Requirements to Get an INJUNCTION to Enforce the BURDEN of an Equitable Servitude
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1. Intent that the restriction be enforceable by successors-in-interest
2. Touch & Concern 3. Notice to the Successor-in-Interest 4. Signed writing or common scheme of development w/ notice **NO privity is required** |
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2 Requirements to Enforce the Benefit of the Covenant as a Equitable Servitude
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1. Intent
2. Touch & Concern |
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Defenses to Enforcement of a Covenant as an Equitable Servitude (4)
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1. Unclean hands--P has made the same use of her property
2. Acquiescence--P let other neighbors do the same thing and didn't complain 3. Laches--P sat by while DF changed their land and only when he was done did P complain 4. Estoppel--P represented that she had no problems with DF's plans 5. Neighborhood has changed such that enforcement would be inequitable |
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3 Ways to Terminate Covenants & Servitudes
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1. Deed of Release
2. Merger--unity of ownership 3. Changed conditions--only if ALL lots in subdivision are affected--ALL or NOTHING |
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6 Requirements for Adverse Possession and 1 type of land that is immune.
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1. Hostile
2. Exclusive (not sharing with true owner or general public, but interruption by non-owner may not matter) 3. Lasting (for period of SoL) 4. Uninterrupted (continuous that ordinary owner would use) 5. Visible (open & notorious) 6. Actual (adverse possessor is actually on the land) (2 exceptions -- constructive adverse possession and land leased to others) Paying of taxes helps too, sometimes required. Public land cannot be acquired by adverse possession. |
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When does the clock start for adverse possession of a future interest?
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Only when that interest becomes possessory
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When does the clock start running for adverse possession of a possibility of reverter or right of reentry?
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When the condition happens that allows the reverter.
When the grantor exercises the right of re-entry. |
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Tacking Rules
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1. An adverse possessor can tack together successive periods of adverse possession
2. You can tack successive adverse possessors only if in privity, or successive true owners 3. If the true owner suffers from a disability (3 I's) at the time adverse possession beings, the clock starts running when the true owner is free of the disability 4. But if adverse possession starts first and then the owner gets one of the disabilities, the clock keeps running 5. No tacking of disabilities |
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To make title acquired by adverse possession marketable, you need to...
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sue in quiet title
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What if there are defects on the property that render the property unfit for ordinary purposes?
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Common law--caveat emptor, B is screwed
Common law exception--concealed defects, B can rescind Modern Trend--duty to disclose on seller of all serious defects that S knows of and of which B is not aware. This is the majority in residential property MODERN RULE--Implied Warranty of Fitness--applies only to the sale of NEW residential housing |
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Rules for effective delivery of deed
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--solely a question of INTENT to pass title presently; no physical transfer necessary, and possession may be future interest (e.g., conditioned on grantor's death)
--recording a deed raises presumption of delivery, even if grantee is clueless --once delivery occurs, title passes, returning deed is ineffective --if grantor dies and deed is still in grantor's possession, presumption of NO delivery but grantee may rebut --deed to a dead person is void, regardless of whether grantor was aware |
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Can parol evidence affect validity of a deed?
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It can be used to show intent (or lack of intent) to deliver, but it cannot make the delivery conditional (unless delivery is to escrow rather than to grantee).
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General warranty deeds contain the following 6 types of covenants of title:
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PRESENT Covenants--personal and DON'T run with the land, breached at time of conveyance
1. Covenant of seisen (requires title and possession) 2. Covenant of right to convey (requires title) 3. Covenant against encumbrances other than ones already disclosed FUTURE Covenants--DO run with the land, only breached, if at all, at some later date when grantee is disturbed in possession 1. covenant of quiet enjoyment (no disturbance by lawful claims) 2. covenant of warranty (will defend against lawful claims and compensate for any loss) (these two represent S's promise to protect B against anyone who comes along and claims paramount title to the property) 3. Covenant of Further Assurances Recovery is limited to purchase price paid without appreciation. |
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What is a Special Warranty Deed?
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It assures against acts of the grantor only, not his predecessors. Assures there has been no conveyance to others and no encumbrances.
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What happens where there is a subsequent sale to a BFP?
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This will cut off the rights of original owner who passed title by a voidable deed, but not if he passed title by a void deed (forged, undelivered, obtained by fraud-in-factum)
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How does the Shelter Rule work and what are its limitations?
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Anyone, including heirs, donees, or devisees, is protected by recording rules if purchasing from a BFP even if they themselves have actual notice of a prior unrecorded conveyance.
EXCEPTION: One who previously held title will not benefit from protection if re-acquiring from a BFP. |
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What might cause a senior mortgage to fall in priority?
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If a senior mortgage is increased at all, (more money or higher interest rate), that mortgage loses priority over junior mortgages, but ONLY to the extent of the increase.
Purchase Money Mortgage receives priority over all others even if recorded earlier, but mortgages given afterward could defeat it through recording statutes. PMM given by seller gets priority over one given by a 3rd party. Failure to record. |
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Effect of Foreclosure on other mortgages
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Foreclosure by one party wipes out all junior mortgages (which must be paid off with proceeds) but purchaser takes subject to all senior mortgages.
But junior mortgages are necessary parties to a foreclosure proceeding and must be made a party or else they are not eliminated. |
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General rule regarding security interest on fixtures
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A seller of a fixture who provides a purchase money security interest (financing plan) in the fixture must make a UCC Article 9 filing with 20 days after installation or else the fixture goes with the house if its foreclosed upon. If they make the filing they can remove it without regard to the priority of the earlier mortgage
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Majority Rule--Riparian Rights
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A riparian owner may use all of the water needed for domestic use, and reasonable use for non domestic use. Only for riparian and contiguous parcels.
There's also a natural flow theory holding that any interference with water is enjoinable even if not really harmful. |
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Minority Rule--Prior Appropriation
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First in time to use the water beneficially is protected against those who come later and want to use it. Water can even be taken to non-riparian lands.
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What happens if a recipient of a class gift does not survive?
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If he fails to survive the testator, his gift is shared by other class members unless the anti-lapse statute saves it for his issue.
If he survives the testator but fails to survive to the time of closing (e.g., death of preceding Life Tenant) his estate will still take. |
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What happens if a mortgagor's tenant places a fixture on property?
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The mortgagee cannot claim them unless mortgage was made after the tenant's lease began and mortgagee has no notice of tenant's rights.
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What effect does a restrictive covenant have on one who takes the land by adverse possession?
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If his use was in conformance with the restriction, he takes title subject to the restriction. Otherwise, the restriction is void.
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What renders title unmarketable?
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Adverse possession, mortgages, restrictive covenants, easements (unless very obvious), significant encroachments, existing violation of zoning (but not zoning regulations themselves, not building code violationsw)
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Can parts of a deed be left blank?
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Grantee name can be filled in; authority is presumed.
But land description cannot be filled in unless authority is explicitly given. |
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What is the rule against fraudulent conveyances
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Creditors can set aside a conveyance if 1) there was an intent to hinder/defraud them; 2) fair value was not received in exchange; 3) grantor was or became insolvent as a result.
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What happens to title if grantee wrongfully acquires deed from escrow holder prior to payment?
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Title is not obtained, which means a subsequent BFP won't get title either -- no title from a thief.
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In an escrow transaction, when does title actually pass?
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Usually when the escrow condition occurs, but if grantor dies or justice otherwise requires, title will relate back to placement in escrow. However, intervening bona fide purchasers are protected.
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Who is and is not protected by recording act?
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Purchasers, including mortgagees (as long as giving something of new value), and purchasers from donees/heirs, are protected. So are installment purchasers, as long as they had no notice upon first payment.
Judgment creditors with liens on real property are usually not protected against prior unrecorded conveyances of said property. They didn't give value. BFPs subsequent to one taking in adverse possession are out of luck since AP isn't recordable. |
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What is the effect of error in the recordation of a deed?
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Once a deed is filed, subsequent purchasers are charged with notice even if the office misindexes it, though they can sue the office.
An unacknowledged deed gives no notice, but if there is only a non-facial defect, it does give notice. |
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When will growing crops remain with a tenant rather than revert to the owner?
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If the tenancy was of uncertain duration and the tenant was not at fault in its termination.
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When a mortgagor assigns his mortgage, does he remain liable forever?
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He remains secondarily liable unless the grantee and mortgagee modify the obligation in which case he's discharged.
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Can government ever deprive property of all economic use without it being a taking?
What if it leaves very little economic value? |
Yes, if the use was prohibited by nuisance or property law when owner acquired it.
Balance social goals of regulation, diminution of value, and owner's reasonable investment-backed expectations. |
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Can the government attach demands to a granting of zoning proposal or variance request?
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Only if those demands are connected to the burden that the proposed project will place on the public, and roughly proportional in extent to the burden. Otherwise Due Process is violated.
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What tests should a zoning ordinance be subjected to for validity?
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Taking Clause; Procedural Due Process; Substantive Due Process; Equal Protection (must show purpose of exclusion)
Can also attack under Fair Housing Act. P must show a discriminatory effect, thus shifting burden to D to show legitimate governmental interest rather than discriminatory ones. Some states have laws against exclusion of the poor (difficult to attack under 14th Amendment) requiring towns to allow fair share of region's demand for cheap housing even if affirmative measures are necessary. |
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What are the rights to lateral and subjacent support?
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Lateral: Can recover for withdrawal of lateral support that damages natural land without fault. Recovery of damage to buildings requires showing of negligence.
Subjacent: Can recover for withdrawal of subjacent support that damages natural land and buildings in existence when subjacent rights were severed from land without fault. Recovery of damage to newer buildings requires showing of negligence. |
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What are the rights to surface water and groundwater?
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Surface water: Common enemy rule allows all measures of diversion. Natural flow allows none. Reasonable use view prevails.
Groundwater: English rule allows to take all, even if it drains neighbors and makes them collapse as long as not malicious. American reasonable use rule doesn't allow diversion. |
