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127 Cards in this Set

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Term of years
Fixed beginning and ending calendar date which is determined at the beginning of the tenancy.

Tenancy terminates automatically - no need for notice of termination
Periodic tenancy
A lease for a period of some fixed duration that continues for succeeding periods until either the landlord or tenant gives notice of termination.

Termination must be given equal to length of the period, not to exceed 6mo. (if term is less than one year)

Can be created expressly or by implication
Tenancy at will
Can be created by agreement or implication, no fixed term, and each party has the right to terminate the lease

A lease may provide for termination at will of tenant only

Modernly, must give 30 days notice.
Tenancy at sufferance: holdovers
Tenant enters rightfully into a lease, but once lease is up he remains wrongfully.

Under common law:
- landlord evicts tenant, or
- landlord allows for renewal of the lease (usually by implication)
Selection of tenants (unlawful discrimination)
American rule - landlord is not bound to put tenant in actual possession of leased property - only legal possession

English rule - actual possession is required
Subleases and assignments
Landlord leases to tenant, and tenant conveys to (T1) - 3rd party transfer of property.

Despite (L) and (T1) not having a relationship, (L) may be able to sue for any breach
- (T1) will be burdened with all of (T)'s covenants if there is an assignment, but not if there is a sublease.
In every lease there is both:
- a contractual relationship (P/K - privity of contract), AND
- a relationship with respect to the land ((P/E[H]) - horizontal privity of estate)
Common law (most jurisdictions) - when (T) transfers interest to (T1), nothing remains in (T) - no reversion, etc.

Vertical privity of estate has been satisfied.
- if this, and other elements are satisfied, (T1) is not liable, and (T) remains on the hook due to contractual privity
When can a landlord/lessor withhold consent?
Only for commercially reasonable objections
- e.g. financial responsibility of proposed assignee, suitability of use for particular property, legality of proposed use, nature of occupancy, etc.
"Not commercially reasonable"
Denying consent solely based on personal taste, convenience, or sensibility, or in order that the landlord may charge higher rent than originally contracted for.
No vertical privity b/c (T) doesn't transfer everything to (T1) - (T) retains a reversion.

The burden of the covenant does not run w/ the land at law - therefore (L) can't sue (T1).
Defaulting tenant (re-entry)?
Common law rule of re-entry:
- means must be peaceable, AND
- landlord must be in rightfull possession of the premises

Modernly, the only lawful means to dispossess a tenant is to resort to judicial process.
Self-help (3 views)
1. Landlord can use reasonable force needed to evict tenant

2. Landlord can use self-help, but only if it's peaceable.

3. Self-help never allowed - must use judicial process
Abandonment of leased property
Occurs when a tenant vacates the leased property w/out justification AND w/out any present intention of returning, defaulting in payment of rent.
Landlord's options (mitigate jurisdiction)
Landlord must mitigate damages (use reasonable means to get new tenant)

If he doesn't, he could lose his cause of action, or damages may be reduced
Landlord's options (no mitigate jurisdiction)
Landlord can accept tenant's surrender (can be express or implied)

Landlord can retake possession on tenant's account

Landlord can sue the tenant for rent due each month.
Covenants (ancient common law)
A lease is a conveyance of property, and any covenants in the lease are independent of each other.
Covenant of Quiet Enjoyment (breaches - #1)
1. If landlord actually and wronfully evicted tenant

Remedy - sue for breach of covenant of quiet enjoyment
- tenant can sue for damages, and can terminate the lease from that point
Breach #2
2. Any act of the landlord that interferes w/ the tenants peaceful enjoyment of the premises is a breach of covenant

Remedy - can sue for damages, and can use constructive eviction (as long as tenant has moved out in a timely manner), lease is terminated and there is no more liability on tenant
Breach #3
3. Landlord fails to act when landlord has a duty to act and which failure interferes with the tenant's peaceful enjoyment of premises.

Remedy - can sue for damages, or constructive eviction (if moved out in a timely manner)
Implied warranty of habitability
A landlord must deliver over and maintain, throughout period of tenancy, premises that are safe, clean, and fit for human habitation
Implied warranty of habitability (#2)
Covers tenancies for specific period, or at will

Covers all latent/patent defects in the essential facilities of residential unit

No assumption of risk defense
Can't waive the warranty
Tenant must give landlord notice
Illegal lease theory
If the tenant is living in an uninhabitable apartment, tehre is necessarily a violation of a housing code, and therefore an illegal lease.
Standard contract remedies - restoration, reformation, and damages
Measure of damages for the tenant is the difference between the value of the dwelling as warranted (without defects) minus the apartment as it is (with defects)

May include discomfort and punitive damages
Chattel that becomes part of the real property

Common law - a chattel becomes a fixture if removing it would cause substantial damages
If tenant installs fixture, then takes with him...
Landlord can:
- sue for waste (property is damaged)
- sue based on law of fixtures (can't remove them)

If tenant fixes the damage from removing fixture, landlord may not be able to sue for waste, but can still sure on law of fixtures.
Buying and selling real estate
Party's decide on the executory period - the time from the K being signed to escrow closing
Contract of sale
(statute of frauds)
Writing must contain:
- description of property (address)
- sales price
- must be signed by party to be charged
- must have material terms
2 exceptions to the statute of frauds
Doctrine of part performance
Doctrine of part performance
Acts of the parties satisfy the evidentiary requirements of statute of frauds

- unequivocal:
- buyer goes into possession and makes valuable improvements
- possession + payment price

- Equivocal acts
- buyer sells his own house (may be selling it for another reason)
Act of the buyer is done in reliance of promise to sell

Applies where unconscionable injury would result from denying specific performance after one party has been induced by the other seriously to change his position in reliance on the K.
Marketable title
An implied condition of a K of a sale of land is that the seller must convey to the buyer a good and marketable title.

If not, buyer can rescind the K.
Marketable title (defined)
Title reasonably free from doubt.
- seller in fact owns the house he is trying to sell
- property not subject to encumbrances except as provided for in K
- no violation of public restrictions
Doctrine of Equitable Conversion
The risk of loss is on the buyer, and even if the property is destroyed by fault of no one, the deal goes through.

Doctrine only applies if the K does not address the issue
Doctrine of Caveat Emptor
No duty upon vendor to disclose any information concerning the premises unless there is a confidential or fiduciary relationship between the parties or some conduct on the part of the seller which constitutes "active concealment"
Merger Doctrine
When a buyer accepts a deed, the buyer is deemed to be satisfied that all the contractual obligations have been met.
- K then merges into the deed, and the deed is deemed the final act of the parties expressing the terms of their agreement

- buyer can then no longer sue seller on promises made in the K.
Implied warranty of Quality
Buyer can sue contractor for defective work done prior to sale, if defects are not apparent to parties at the time of purchase
Implied warranties
Not created by agreement between the parties, but imposed by law based on public policy
General Warranty Deeds
Grantor warrants that he and his predecessors have not done anything to cause a breach in any of the covenants
General Warranty Deed (present covenants)
Problem exists at the time of the conveyance
- statute of limitations starts running the minute escrow closes
Covenant of Seisin
Grantor warrants that he owns the estate he purports to convey

- breach creates a chose in action which passes by assignment to subsequent grantees of the deed.
Covenant of Right to Convey
Grantor warrants that he has the right to convey the property
Covenant against Encumbrances
Grantor warrants that there are no encumbrances on the property
General Warranty Deed (future covenants)
Statute of limitations doesn't start until problem arises
Covenant of General Warranty
Grantor warrants that he will defend against lawful claims and will compensate the grantee for a loss that the grantee may sustain by assertion of superior title
Covenant of Quiet Enjoyment
Grantor warrants that the grantee will not be disturbed in possession of the enjoyment of the property by assertion of title

- mere existence of superior title does not constitute a breach
Covenant of Future Assurances
Grantor promises that he will execute any other documents required to perfect the title conveyed.
Every right to, or interest in, the land which may subsist in 3rd persons, to the diminution of the value of the land, but consistent w/ passing of the fee by conveyance
Encumbrances (classed as...)
A pecuniary change against premises
- e.g. mortgages, judgment liens, tax liens

Estates or interests in property less than fee
- e.g. life estate, lease

Easements or servitudes on the land
- e.g. rights of way, restrictive covenants, profits
Special Warranty Deed
Grantor only warrants that he hasn't done anything to cause a breach in any of the covenants

- Fairly standard in CA
Quitclaim deed
No covenants

Grantor is saying "I give you everything I own in Blackacre"
Delivery of the Deed
A manifestation of intent by grantor that something pass immediately

- delivery does not necessarily have to be a physical handing over
- legal delivery carries all force and consequence of absolute, outright ownership at the time of delivery, or there is no delivery at all
Delivery of the Deed (with escrow)
Grantor must physically hand over the deed
Where deed has been formally executed and delivered, presumption that grantee assented to delivery can be overcome only by...
...evidence that no delivery was intended.
The Recording System (common law rule)
"first in time is first in right"
Grantor/grantee index
Prospective buyer runs a title search to see if (O) actually owns the title he purports to own, and see if (O) has already conveyed property to someone else.

- follows the grantor
Tract index
Entries are made under block and lot number

- follows the land
Mother Hubbard clause
An instrument which describes property to be conveyed as "all of the grantor's property in a certain county"

- not sufficienty specific as to be effective against a subsequent purchaser and mortgagee unless they have actual knowledge of the transfer
Race statute
(B) has to be subsequent purchaser, and must record first
Notice statute
(B) has to be subsequent purchaser, without notice of prior conveyance

- may be actual or constructive (inquiry) notice
Race-Notice statute
(B) must be subsequent purchaser, without notice of prior conveyance, and record first
Zimmer Rule
All prior conveyances in (B)'s chain of title must be recorded
Chain of Title
Refers generally to the recorded sequence of transactions by which records must be passed from a sovereign to the present claimant.
Bona Fide Purchaser
One who takes title to property w/out actual or constructive notice of another's right therein
Pro Tanto Rule
Protects buyer to the extent of payments made prior to notice, but no further

- may occur when consideration has been paid in installments (not complete)
Methods to applying pro tanto protection
1. Most jurisdictions award land to holder of outstanding interest and award buyer the payments he/she has made.

2. Award buyer fractional interest in the land proportional to the amount paid prior to notice.

3. Allow buyer to complete purchase, but to pay remaining installments to holder of outstanding interest.
Quitclaim deeds
May be held that quitclaim deed in chain of title puts all subsequent purchasers on inquiry notice
- should cause suspicion as to lawfulness of title
Constructive Notice
1. Record notice - deed is on record

2. Inquiry notice - purchasers duty to investigate suspicious circumstances
Public Nuisance
Any act that substantially interferes with general commumity interests

- a member of the community can sue if they are "specially affected" - different kind of damage from the rest of the public
Private Nuisance
1. Substantial intentional non-trespassory invasion + unreasonable conduct
- "intentional" = substantially certain

2. Substantial unintentional non-trespassory invasion + negligent, reckless, or ultrahazardous conduct
- only need invasion + one of the three
A private nuisance exists whenever... users one's own property in a way which substantially interferes with another's interest in the private use and enjoyment of that other's land.
4 Rules of Nuisance Resolution
1. Abate the activity in question by granting (P) injunctive relief

2. Let the activity continue if (D) pays damages

3. Let activity continue by denying all relief

4. Abate the activity if (P) pays damages
Oral or written permission given by the occupant of the land allowing the licensee to do some act that otherwise would be a trespass.
Revocation of a license
A license is revocable

- license coupled w/ interest in the land can't be revoked

- license that becomes irrevocable under rules of estoppel
The right of one person to go unto the land of another and make limited use thereof

No right to take anything from the land
Affirmative easement
An easement that entitles the easement owner to do affirmative acts on the land of another
Negative easement
An easement forbidding one landowner from doing something on his land which but for the easement, he would have the right to do

Right of the dominant owner to stop the servient owner from doing something on servient land
Types of negative easements
Right to stop neighbor from:
1. blocking your window
2. interfereing with air flowing onto your land in a defined channel
3. removing the support of your building (by excavation or removal of supporting wall)
4. interfering with flow of water in an artificial stream
Easements and Statute of Frauds
Easements are w/in the S of F, so generally requires a written instrument signed by party to be bound.
- may also be created by implication or prescription
Easement (or Profit) Appurtenant
An easement that is created to benefit and does benefit the possessor of the land in his use of the land.

- involves 2 pieces of land owned by 2 different people

Runs with the land
Dominant estate (tenament)
Land benefitted by the easement
Servient estate (tenament)
The land burdened by the easement
Easement (or Profit) in Gross
An easement that is created that does not benefit the owner of the easement in any use of the land.

Runs with the person
Creation of a new interest

Under common law, grantor could not reserve an interest in favor of a 3rd person (but could reserve or except in favor of himself)

Modernly, grantor can reserve interest in a 3rd person
The right of any one person to go unto the land of another and take there from either some part of the land itself or some product of the land

- profit owner may use the land to the extent necessary to enjoy the profit

- every profit necessarily includes an easement
Easement Implied from Prior Existing Use (elements)
1. Common grantor (O) made a conveyance

2. of a physical part only ((O) kept a part)

3. prior to conveyance there was a usage of the 2 parts which, had it been severed, could have been the subject of an easement w/ a dominant estate and a servient estate

4. there is a necessity

5. usage may be apparent (reasonably discoverable)
When one utilizes part of his land for benifit of another part

- quasi-dominant tenament - part of the land benefitted

- quasit-servient tenament - part utilized for benefit of other part
Easement from Prior Use by Implied Reservation
Grantor initially wants benefit of easement, and reserves or retains the dominant estate

Traditionally, strict necessity is needed

Modernly, fact that there was an implied reservation is only a factor in determining the degree of necessity
Easement from Prior Use by Implied Grant
The common grantor is the one who is burdened by the easement and retains the servient estate.

Traditionally, "reasonable necessity" only is needed
Easment by Necessity (elements)
1. Common grantor made a conveyance

2. of a physical part only

3. after severance of the 2 parcels, it is "necessary" to pass over one of them

Most courts require strict necessity (but not all)
In order to create an easement by necessity...
...the necessity must have existed at the time the estate was created
Assignability of Easements
Easments always run with the land

Any easement in gross can be transferred or assigned according to grantor's intent
"One stop" Rule
If there are more than 2 people owning an easement in gross, they both must agree how the easement must be used
Termination of Easements
How express easements end?
- easement by necessity ends when the necessity ends

- when one person comes into ownership of both dominant and servient property

-easement appurtenant - when owner of dominant estate releases the easement (must be in writing), by it's own terms, or by abandonment
Need more than non-use
- acts by the owner of the dominant tenament conclusively and unequivocally manifesting either a present intent to relinquish the easement; OR
- a purpose inconsistent with its future existence
Covenants at Law
Remedy you seek is legal or monetary
Covenants at Equity (equitable servitudes)
Injunctive or equitable relief
Analysis questions:
1. Are we in law or equity?

2. Is this an issue of the running of the burden, benefit, or both?
Running of the Benefits
(P) is not the original party
Running of the Burden
(D) is not the original party
Doctrine of [Implied] Reciprocal Negative Easements
If owner of 2 or more lots, which are situated as to bear a relation to each other, sells one w/ restrictions which are of benefit to land retained, during the period of restraint, owner of lot retained can do nothing forbidden to owner of the lot sold
Termination of Covenants
1. by its own terms
2. written release
3. abandonment
4. latches
5. doctrine of changed circumstances
Doctrine of Changed Circumstances
When circumstances surrounding the reason for the covenant has changed enough such that the covenant no longer provides a material benefit
Common Interest Communities
Determining reasonableness must not be by reference to the facts specific to the objecting homeowner, but by reference to the common interest development as a whole - objective test

Only way these covenants will be invalidated is if they violate a public policy or fundamental right
Village of Euclid
Under police power, local government has the power to engage in zoning
Minimal Scrutiny
(P)must show (law is arbitrary) that the law/ordinance is not rationally related to a legitimate government interest

E.g. social, economic, zoning, police power
Under minimal scrutiny, what does the government need to show?
Government does not need to show data proving that non-enforcement of ordinance is rationally related to a legitimate government interest

Only need to show that ordinance might affect one thing, which effects another, etc.
Police power
Reserved to the states to protect health, safety, and morals of its citizens
Middle Tier Scrutiny
Government must show law/ordinance is substantially related to an important government interest

No longer valid
Strict Scrutiny
Government must show law/regulation is necessary (nothing less drastic available) for a compelling government interest

E.g. fundamental right
Non-conforming use
If the use is lawful, it runs w/ the land, so anyone who buys the land after original owner gets the benefit of being able to use the land in the non-conforming lawful way.
Aesthetic Regulation
Protection of property values is a legitimate objective of zoning ordinances

Property use that decreases property values affects adjoining property owners and the general public as well
Analysis for zoning
1. What is the applicable body of law?

E.g. police power, fundamental rights, etc.
Eminent Domain
The power of the federal, state, and local government to take title to property against an owner's will.

Within the states police power
Minimal scrutiny and Eminent domain
Where exercise of eminent domain power is rationally related to a conceivable public purpose, the legislature may take the property.

The fact that the provision will accomplish its objectives is not the question - requirement is satisfied if the state legislature rationally could have believed that the provision would promote its objective.
Permanent Physical Occupation (Loretto)
ALWAYS a taking

Immaterial how small the taking is

Even temporary taking is compensable

- temporary invasion is not a permanent physical occupation, and is not compensable
Economic Wipeout (Lucas)
ALWAYS a taking

Regulation in question must be permanent, not temporary

What interest must be wiped out?
1. Some cases say entire estate
2. Some cases hold that part of the whole that is wiped out is in itself a taking
Conceptual Severance (Mahon)
Wiping out 1 part of the property rights is 1/3 of the estate, but 100% of the estate has been wiped out - the part wiped out is the whole (not part of the whole)

- temporal severance is dead
Nuisance Control (Hadacheck)
NEVER a taking

Valid exercise of police power

Nuisance must be "common law" nuisance

An economic wipeout is categorically a taking - except if it is caused by nuisance control
Non-categorical Taking
A regulation is a taking if it "goes too far"

Pre-Lingle - Regulation goes too far when the regulation does not substantially advance an important/legitimate government interest
- middle tier scrutiny

Post-Lingle - appropriate analysis is Penn Central
- no more middle tier scrutiny
Penn Central Ad Hoc Analysis
1. Extent to which a regulation interferes with "distinct investment-backed expectations"

2. Character of governments action

3. Whether the regulation provides for "Transferable Development Rights"

4. Whether the regulation secures for the landowner an "average reciprocity of advantage"

5. Diminution in value
Character of government's action
Balancing harm to the landowner w/ benefit to the public

Government authorized physical invasion is a strong factor in favor of finding a taking
"Average Reciprocity of Advantage"
Could mean:

- landowners not being singled out for harsh treatment

- landowner is securing some sort of benefit from the regulation

- owner is not being singled out AND is securing a benefit
Nollan/Dolan test
"Essential Nexus" test

"Rough Proportionality" test
- individualized determination

- Burden of proof is on the City
Inverse Condemnation (Common law)
Traditionally, when a regulation is found unconstitutional, the city would either revoke the regulation or obtain landowners property in an eminent domain proceeding

- but landowner would not receive compensation from time regulation was promulgated until time regulation was declared unconstitutional
Inverse Condemnation (Firt English)
Provides landowner must be compensated for the time he could not use his land

- a taking is ultimately found
- landowner was denied all use during the time the regulation was in effect