Property Law Wfu 2012

Front 1

Locke's Labor Theory

Back 1

The idea that exerting labor makes something your possession.

Front 2

Johnson v. Macintosh

Back 2

Acquisition by Discovery
Indians and Court sold land to two parties. The court held that the person who got it from the Indians had no rights because the Indians had no rights.

Front 3

Property as a Bundle of Rights / Bundle of Sticks? What's in the bundle?

Back 3

1) The right to exclude (halmark of USA property law),
2) The right to transfer, 3) The right to use,
4) possess, 5) alter, 6) enjoy fruits.

Front 4

Acquisition by Capture

Back 4

Can be done by
1) occupancy or
2) ownership of the land the property is on

Front 5

If property concerns rights among persons in relation to things, then what are these things?

Back 5

Real Property: rights in land and its attachments; Personal Property: rights to things other than land: 1) chattels 2) intangibles.

Front 6

{Acquisition by Find}
Types of property

Back 6

1) Abandoned property
2) Lost Property
3) Mislaid property

Front 7

{Acquisition by Find}
Abandoned property

Back 7

- Intentional relinquishment with no intent to reclaim.
- Finder acquires title

Front 8

Adverse Possession - Exclusivity

Back 8

Only the AP can use the property. Others CAN use the property, but only with the AP's permission.

Front 9

{Acquisition by Find}
Lost

Back 9

- Didn't mean to leave the property somewhere.
- Finder has good title against everyone except rightful owner and any previous rightful finder

Front 10

{Acquisition by Find}
Mislaid Property

Back 10

- Left property somewhere with the intention to return and get it.
- Finder has good title against everyone except rightful owner and any previous rightful finders.

Front 11

Adverse Possession - Under a Claim of Right:

1. What is it?

2. What are the 3 theories?

Back 11

1. The state of mind of the AP.

A. Aggressive Trespasser (Minority Approach) - the AP must believe the land is someone else's. (The Maine Doctrine)

B. The Good-Faith Standard (Objective Approach) - the AP thinks they own the land but are mistaken.

C. Intent Not Important (Majority Approach) - intent is irrelevant b/c it is too hard to prove. (The Connecticut Doctrine)

Front 12

Adverse Possession
(Rationale)

Back 12

1) makes sure good use of land is being made.
2) Quiets title
3) Increases alienability

Front 13

Adverse Possession - Continuous

Back 13

The possession must be continuous. Gaps are permitted, if that is how an average true owner would use the land.

Front 14

Elements of Adverse Possession
CHANES

Back 14

1) Continuous
2) Hostile
3) Actual entry giving exclusive possession
4) Notorious and Open
5) Exclusive (land cannot be shared with other adverse possessors)
6) Statutory period

Front 15

Adverse Possession Under Color of Title:

1. What is the rule?

2. Is this the minority or the majority view?

Back 15

1. If the AP meets all the requirements for adverse possession of land ACTUALLY possessed, then the AP receives ALL land possessed, BOTH actual AND constructive!!

2. The MINORITY view!

Front 16

{Adverse Possession}
Actual Entry

Back 16

-The date of initial trespass which triggers the Statute of Limitations (typically 20 years).
-Have to actually physically take possession of the land in some way.
- Have to substantially enclose or use the land in the way the real owner would. (Van Valkenburgh)

Front 17

Adverse Possession Under Color of Title:

1. What is the majority exception?

Back 17

If the AP meets all the requirements for adverse possession of land ACTUALLY possessed, then the AP receives all land ACTUALLY possessed, and a reasonable percentage of land constructively possessed.

Front 18

Adverse Possession Under Color of Title:

1. What is the exception to the majority exception?

Back 18

The true owner's actual or constructive possession TRUMPS the adverse possessor's constructive possession.

Note that the true owner must live on or very near the property.

Front 19

Adverse Possession and Disabilities

1. What is the rule?

2. What type of disabilities?

3. What is the exception to the rule?

Back 19

1. States make allowances for disabilities such that the SofL does not begin running until the disability ends.

2. Insanity, incarceration, minority status.

3. The disability MUST be present at the time of actual entry!

Front 20

{Adverse Possession}
Hostile

Back 20

- Must be in contravention of the Owner's own consent.

Front 21

{Adverse Possession}
Open and Notorious

Back 21

- The possession must be readily visible to any inspector of the property.
- The idea is that the owner would have notice of the possession. (Actual knowledge not required, just should have known)
- Another way to look at it is that it would be the type of occupation that a true owner would make.

Front 22

Adverse Possession and Tacking:

1. May the AP tack?

2. May the true owner tack?

Back 22

1. APs can tack if they are in PRIVITY!

2. True owners CAN tack!

Front 23

What's the rule of fox hunt Pierson v. Post case?

Back 23

Property in wild animals is only acquired by occupancy, and pursuit alone does not constitute occupancy or vest any right in the pursuer.

Front 24

{Adverse Possession}
Tacking (Continuous)

Back 24

- The amount of time that something has been possessed can be started before the person claiming possession started possessing.
- Must show:
a. Current person is using it in the same way that the person before was.
b. Deed in good faith from prior possessor the present possessor.
c. Privity

Front 25

Acquisition by Gift

Back 25

Requires:
1) Intent
2) Delivery

Front 26

{Acquisition by Gift}
Intent

Back 26

Can be derived by the following things:
1) Circumstances
2) Delivery
3) Writing

Note: There can be a present transfer of rights, where the grantor gets to keep enjoying it.

Front 27

{Acquisition by Gift}
Delivery

Back 27

Can be done:
1) Symbolic: A contract
2) Constructive: A key
3) Manual: The actual thing

Front 28

Common law limits on the Right to Exclude:

Back 28

1) Consent, 2) Estoppel, 3) Necessity, 4) Public policy, 5) Prescription/forbidden (i.e. assaults, or othercrimes on your property).

Front 29

{Acquisition by Gift}
Manual Delivery

Back 29

- Giving the actual item.
- The traditional rule is that if an object can be manually delivered, then it must be.

Front 30

Causa Mortis

Back 30

- Gifts given in contemplation of death.
- Courts usually impose stricter requirements for these gifts because the person can’t say what their intention was after they are dead.

Front 31

Freehold Estate Types

Back 31

From best to worst
1) Fee Simple Absolute
2) Fee Tail
3) Fee Simple Defeasible
4) Life Estate

Front 32

Fee Simple Absolute

Back 32

- Best freehold estate
- Inheritable and Alienable
- Created by "and to his heirs"
- Usually "to A" will create this

Front 33

Hannah v. Peel (1945)

Back 33

The finder of the brooch has a superior title than the owner of the locus in quo on which the lost/unattached property was found.

Front 34

Fee Tail

Back 34

Purpose is to keep the land within the family (eldest son progression)

Words of Limitation - to the heirs of her body

Always followed by: Reversion (back to grantor) or remainder (to a third party)

These don't really exist anymore. (only 2 states allow)

Front 35

Johnson v. M'Intosh (1823)

Back 35

Native Americans had the right of occupancy but not ultimate title to their lands, and so could not sell land to private US citizens following Natural Law conepts.

Front 36

Life Estates

Back 36

- Gives an interest for life.
- Not alienable or inheritable
- "To A for Life"
- Always accompanied by a future interest.

Front 37

Fee Simple Defeasible

Back 37

- Can sell or convey the property subject to restrictions.
- 3 types
1) Determinable
2) Subject to a condition subsequent
3) Subject to an executory interest

Front 38

Van Valkenburgh v. Lutz (1952)

Back 38

Despite virtually meeting requirements for adverse possession, Lutz's admission of VV's ownership of the land deemed his claim void along with the court's interpretation of lack of improvements/ownership.

Front 39

{Fee Simple Defeasible}
Determinable

Back 39

A fee simple estate that If the condition is breached the interest AUTOMATICALLY when a certain event or condition occurs

Words of Limitation characterized by duration:
So long as, while, until, during, when

Future Interest --> Possibility of reverter
Can only be retained by the transferor (or his heirs)

Automatically becomes possessory upon the happening of the stated condition

Front 40

{Fee Simple Defeasible}
Subject to a condition subsequent

Back 40

There is a condition to the interest

If the condition is breached, the grantor has the OPTION to end the interest.
(not automatic like fee simple determinable)

Words of Limitation tend to be conditional words:
"but if", "if", "on condition that", however

Right of entry (power of termination) → can elect to re-enter property

Front 41

{Fee Simple Defeasible}
Subject to an Executory interest

Back 41

Defeasible fee simple estate provides that the estate pass to a third person (other than the grantor) upon the happening of the stated event

Words of Limitation characterized by duration (same as fee simple determinable):
So long as, while, until, during, when

Future Interest --> Executory Interest
Grantee creates future interest in transferee

Front 42

Future Interests

Back 42

- These are interests that exist in the future after the present interest is over.

Front 43

{Future Interests}
For Transferor (O)

Back 43

1) Reversion
2) Possibility of Reverter
3) Right of Entry

Front 44

The 3 dominant factors over finders' rights:

Back 44

1) the presumed intent of the original owner (misalid, lost, abandoned), 2) the identity of the competing claimants, 3) the location where the item was found (mislaid, lost, abandoned).

Front 45

{Future Interests}
Reversion

Back 45

- for Transferor
- The Transferor hasn't given away all of their interests
- Created when there is no vested Fee Simple.
- Alienable and decendable.

Front 46

Who is a finder?

Back 46

A person that takes possession (1 intent to control, 2 control) of mislaid, lost, or abandoned property.

Front 47

{Future Interests}
Possibility of Reverter

Back 47

Created with a fee simple determinable

Can only be retained by the transferor (or his heirs)

Automatically becomes possessory upon the happening of the stated condition

Front 48

Four traditional categories of found property:

Back 48

1) abandoned (intentional/voluntary relinquish of ownership), 2) lost (neglect/inadvertence), 3) mislaid (intent to retain ownership but fails to reclaim or forgets it), 4) treasure trove (unknown owner, kept for safekeeping)

Front 49

Co-Ownership

1. What are the three types?

Back 49

1. Tenants in Common

2. Joint Tenancy

3. Tenancy by the Entirety

Front 50

{Future Interests}
Right of Entry

Back 50

For Transferor
- Created when the transferor creates a Fee Simple Subject to a Condition Subsequent.

Front 51

Discover Rule (3):

Back 51

1) Use of due diligence at the time of the alleged theft and thereafter; 2) Existence of an effective method to notify authorities; 3) Whether the use of the effective method is effective in putting reasonably prudent purchaser on constructive notice that someone else is the true owner.

Front 52

Co-Ownership: Tenants in Common

1. What interest does each tenant have?

2. Is the interest descendible?

3. What if A sells her interest - what does the grantee get?

Back 52

1. Each tenant has a separate but undivided interest in the WHOLE property!

2. YES, it can be conveyed by deed or by will.

3. Only an interest in the land, NOT the property!

Front 53

{Future Interests}
For Transferee (A)

Back 53

- Remainder
- Vested
- Contingent
- Executory Interest

Front 54

{Future Interests}
Remainder

Back 54

For Transferee
1) Politely waits for the previous interest to terminate
2) Must be possible for the interest to be possessory at the moment the previous interest ends.

Front 55

Co-Ownership: Joint Tenancy

If a joint tenant destroys a joint tenancy, what are the remaining tenants?

Back 55

The remaining tenants are still JOINT TENANTS!!

Front 56

{Future Interests}
Vested Remainder

Back 56

- It is clear who will get the interest
1) Given to an ascertained person
2) Not subject to a condition precedent

Front 57

{Future Interests}
Indefeasibly Vested Remainder

Back 57

Type of Vested Remainder
- It is clear who will get the interest, and no one else could get it.

Front 58

Inheritance of a Fee Simple (HIACE):

Back 58

1) Heirs are persons who survive the decedent and are designated as intestate successors under the state's statute of descent; 2
) Issues are descendants and take to the exclusion of all other kindred;
3) Ancestors are persons who take as heirs when no issues are present;
4) Collaterals are collateral kin when others do not exist;
5) Escheat occurs when no heirs are found and the property goes to the state.

Front 59

1. Does a mortgage sever a joint tenancy?

2. Does the mortgage survive the death of a joint tenant?

Back 59

1. In MOST jurisdictions, a mortgage does NOT sever a joint tenancy!

2. 50/50 split!

Front 60

{Future Interests}
Vested Remainder Subject to Open

Back 60

Type of Vested Remainder
- Partial divestment
- The class of people who could get the interest is still open.
EX: "to B's Kids" because there could be more kids.

Front 61

{Future Interests}
Contingent Remainder

Back 61

- It is not clear who will get the interest.
- Exists where there:
1) Unascertained person OR
2) Subject to a condition precedent

Front 62

{Future Interests}
Executory Interest

Back 62

For Transferee (A)

future interest that must divest another estate or interest to become possessory
opposite of the remainder interest

Cuts off the transferor in the future

Front 63

3 kinds of waste:

Back 63

1) Voluntary (if waste condition existed, then its ok),
2) Permissive (Failure to maintain/repair/pay-taxes of the estate),
3) Ameliorative (An improvement upon the estate even if it increased the value).

Front 64

{Future Interests}
Types of Executory Interest

Back 64

- Springing:
divest or cut short some interest in another transferee
Jumps over the arrow

- Shifting:
divest the transferor in the future (springing executory interest); Not modern.
Moves along one side of the arrow.

Front 65

Modern US Fee Simple law (3):

Back 65

1) Presumption of FSA ownership unless proven otherwise;
2) For efficiency in the economy;
3) Alienable property allows for easy quite of title actions.

Front 66

Does a lease sever a joint tenancy?

Back 66

NO!

Front 67

Merger Doctrine

Back 67

- Transferee's lesser interest is merged into the greater interest.
1) Squishes out contingent interests between the life estate and the next vested fee simple.
2) Vested interests never get squished out.

Front 68

Types of Concurrent Interests

Back 68

1) Joint Tenancy
2) Tenancy by the Entirety
3) Tenancy in Common

Front 69

What is reversion?

Back 69

A part of an estate that is retained by the grantor.

Front 70

Joint Tenancy

Back 70

- 2 or more people own a single unified interest in real or personal property.
- Survivorship: yes
- Possession: Each tenant is entitled to occupy the entire premise subject to the same right in the other party.
Severance: may destroy at any time. Usually done through conveyance.

Front 71

What is remainder?

Back 71

A part of an estate that is owned or transferred by a third party.

Front 72

What happens when a spouse dies (and it is NOT a tenancy by the entirety)?

Back 72

Common Law: The wife gets a life estate in 1/3 of each parcel of land; the husband gets a life estate in all the land.

Modern Elective Share: The surviving spouse can accept the will, or can renounce the will and take a statutory share.

Community Property: all property purchased during marriage is considered community property.

Front 73

Four Unities of Joint Tenancy

Back 73

- To create a JT the tenants must be equal in all of the following:
1) Time: recieve interest at the same time
2) Title: receive interest under the same instrument
3) Interest: Must have identical interest
4) Possession: Both must have the right to possess the whole property at creation (can be contracted around later)

Front 74

Severance of Joint Tenancy

Back 74

- Usually done by conveyance.
- If a JT conveys their interest to a third party, then the joint tenance is either:
1) Destroyed (if there are only 2 JTs)
2) Severed as to that part of the interest (if there are more than 2 JTs)

Front 75

Tenancy in Common

Back 75

- There can be unequal shares.
- No right of survivorship
- Decendable
- Alienable

Front 76

{Concurrent relations}
Ouster

Back 76

Where the occupying tenant refuses to permit the other tenant equal occupancy. They must pay the other party a share of their fair rental value.
Elements:
1) Prevents or physically bars entry by a cotenant: Change locks
2) Denies contenants claim to title: Must be express.

Front 77

{Concurrent relations}
Depletion

Back 77

- Duty to account for depletion

Front 78

{Concurrent relations}
Rents from Third Parties

Back 78

If one tenant receives rent from a third party they are obligated to share those rents with cotenants pursuant to the size of their share.

Front 79

{Concurrent relations}
Profits from the land

Back 79

Split according to the portion of ownership.

Front 80

{Concurrent relations}
Costs of Ownership (types)

Back 80

- Mortgage
- Taxes
- Repairs
- Improvements

- Implied Fiduciaries

Front 81

What is a covenant?

Back 81

A promise respecting the use of land that runs with the land at law.

Front 82

{Concurrent relations}
(Costs of Ownership)
Mortgage

Back 82

- Each cotenant is responsible for their share.
- Principal: Paying cotenant can enforce all of the rights of power of the morgagee against their contenant, including foreclosure.
- Interest: A cotenant that pays more than their share can force the other party to reimburse him for their share immediately, upon partition, or within the limitations period following the end of the cotenancy.

Front 83

What are the four requirements for PRIVITY?

Back 83

1. Must comply with the Statute of Frauds

2. Must be evidence of intent to run with the land

3. Privity of estate

4. Must touch and concern the land

Front 84

{Concurrent relations}
(Costs of Ownership)
Taxes

Back 84

- Each cotenant is responsible for their proportional share.
- A cotenant that pays more than their share can recover whenever (subject to statutory limitations).

Front 85

{Concurrent relations}
(Costs of Ownership)
Repairs

Back 85

- There is no affirmative right for contribution for repairs.
- However, there are two ways that one party can recover for repairs from a cotenant:
1) Rent
2) Partition

Front 86

{Concurrent relations}
(Costs of Ownership)
Repairs (recovery)

Back 86

- Rent: From a third party or due to exclusive occupancy. The repairing cotenant may deduct from the rent due to the other party their share of the repair costs.
- Partition: Upon partition a repairing party is entitled to be reimbursed for the repair costs in excess of their share. Can be done by a larger portion or cash in physical partition, or cash in partition by sale.

Front 87

Freehold estates (3):

Back 87

1) Fee Simple 2) Fee Tail 3) Life Estate

Front 88

{Concurrent relations}
(Costs of Ownership)
Improvements

Back 88

- You can’t recover for improvements from a cotenant.
- if there is partitioning or liability for rent by the improving party, the cotenant can only recover for the VALUE ADDED not the actual cost of the improvement.

Front 89

What is seisin?

Back 89

Was possession of a particular kind and with peculiar consequences; no longer differentiated from possession in modern times.

Front 90

{Concurrent relations}
(Costs of Ownership)
Implied Fiduciaries

Back 90

There are no implied fiduciary duties to each other.

Front 91

Types of future interests of transferor (3):

Back 91

1) Reversion (A transferor's right to future possession) 2) Possibility of reverter (A transferor's right to future possession determinable on the happening of an event) 3) Right of entry or termination (A transferor's right of entry subject to condition subsequent and retain the power to cut short the estate).

Front 92

Types of future interests of transferee (3):

Back 92

1) Vested Remainder (a future interest that becomes possessory upon natural expiration of preceding estate)
2) Contingent Remainder (a future interest that doesn't become possessory solely upon natural expiration of preceding estate)
3) Executory Interest (a future interest that divests another estate except when a remainder divests a reversion)

Front 93

Partition

Back 93

- A JT or TIC can demand at any time and for any reason.
- If not agreed ahead of time the court will do one of the following:
1) Physical Partition
2) Partition by Sale

Front 94

Physical Partition

Back 94

- Most common
- Will only not be done of a party can prove:
1) it is impossible or extremely impracticable
2) not in the best interest of ALL parties.

Front 95

Partition by Sale

Back 95

- Not favored by courts
- Net proceeds are divided among the co-owners in proportion to their interest.

Front 96

Private Nuisance - Measuring Reasonableness:

1. What are the elements of the Restatement Balancing Test?

Back 96

A. Gravity of the Harm
- Social value of the harm
- Character and extent of the harm
- Suitability of the location
- Burden on the plaintiff

B. Utility of the Conduct
- Social value of the conduct
- Suitability of the location
- Impracticability of the D preventing the harm

Front 97

Agreements not to partition

Back 97

Must:
1) Clearly manifest parties intention not to partition
2) duration must be limited to a reasonable period of time

Front 98

Heirs

Back 98

- these exist when someone dies intestate.
- Order of heirs:
a. Spouse/issue (children)
b. Ancestors
c. Collateral (everyone else)

Front 99

Equitable Servitudes:

1. What is it?

2. What is the difference between equitable servitudes and real covenants?

Back 99

1. A covenant respecting the use of land that is enforceable regardless of its enforceability at law!

2. Only the REMEDY!!! Equitable servitudes seek an injunction, while real covenants seek monetary damages.

Front 100

Words of Limitation

Back 100

Tell the length of an interest

Front 101

What are the requirements for an equitable servitude?

Back 101

1. SOF

2. Must show intent to run with the land.

3. Must show VERTICAL privity!

4. Agreement must touch and concern the land.

5. There must be NOTICE (either actual or constructive).

Front 102

What is the Spite Fence Doctrine?

Back 102

Courts CAN strike down the lawful use of property if it is done solely to spite another landowner.

Front 103

Leasehold estates are:

Back 103

nonfreehold possessory estates; leasehold tenants do not have seisin (the landlord does) but does have possession; today it is usually not necessary to distinguish seisin from possession.

Front 104

Permissive Waste

Back 104

- Arises from a failure to act

Front 105

Defeasible estates are:

Back 105

any estate that may terminate prior to its natural end point upon the occurrence of some specified future event; for example a life estate ends naturally at the death of the life tenant but a defeasible life estate might end earlier.

Front 106

Ameliorative Waste

Back 106

- makes a property better (increases its property value), but changes the property in some material way.

Front 107

Type (3) of defeasible fees:

Back 107

1) FSD (fee simple ends when an event happens; automatic forefeiture; so long as)

2) FSSCS (fee simple cut short when a stated condition happens; forefeiture not automatic; but if; presumed FS)

3) FSSEL (fee simple ends upon execution of a limitation; automatic forefeiture).

Front 108

Lease Terms (types)

Back 108

1) Periodic Tenancy
2) Tenancy at will
3) Term of years
4) Tenancy at sufferance

Front 109

Periodic Tenancy

Back 109

- For a recurring period of time
- continues until either party gives advance notice of termination
- death of landlord does not end periodic tenancy

Front 110

{Periodic Tenancy}
Notice

Back 110

- Must be given in advance equal to the period but not more than six months.
- If notice is not given, then the party is obligated for another period

Front 111

Tenancy at Will

Back 111

- Tenancy with no fixed period. Ends whenever a party terminates it.
- If LL dies tenancy is over.
- Can be terminated by either party.
- If it is only terminable by one party then it is a determinable tenancy not a tenancy at will.

Front 112

Term of Years

Back 112

- A fixed term, clearly set out.
- There is no limit as to how long this can be except as limited by statute.
- It can be terminable.
- Death of landlord will not terminate a term of years.

Front 113

Tenancy at Sufferance

Back 113

- This is when a tenant stays after their leasehold interest has expired.
- It will last until one of two things happens within a reasonable time:
1) Eviction by LL
2) Binding the tenant to a new term

Front 114

{Tenancy at Sufferance}
Eviction (Remedy)

Back 114

- Allows for recovery of damages for the loss of possession by LL.
- Damages are measured by the fair market value (usually original rent, unless there is convincing evidence to the contrary) of the occupied premises, plus any special damages.

Front 115

{Tenancy at Sufferance}
Binding the tenant to a new term (Remedy)

Back 115

- Nature: Usually periodic tenancy
- Term: Differs. Most will use the original term, almost none allow it to be more than 1 year.
- Provisions: Usually the same as the old lease. If the LL elects to raise rent and T doesn’t object then the rent is raised.

Front 116

Sublease

Back 116

- When the leasee transfers anything less than their entire interest in the leasehold.
- If the subletter defaults the LL can terminate the lease.

Front 117

{Sublease}
Privity of estate

Back 117

exists btwn:
L and T1
T1 and T2
not btwn:
L and T2

Front 118

Differences between Contingent Remainder and FSSEL (2):

Back 118

1) CR never divests the Owner
2) FSSEL always divests the preceding estate like FSD.

Front 119

{Sublease}
Privity of Contract

Back 119

Exists btwn:
L and T1
T1 and T2
L is only a 3rd party beneficiary regarding his relationship with T2

Front 120

The future interests recognized in our legal system (2):

Back 120

1) Interests retained by the transferor (reversion, possibility of reverter, right of entry OR power of termination)

2) Interests created in a transferee (Vested remainder, Contingent remainder, Executory interest).

Front 121

Privity of Estate

Back 121

- If you are in privity of estate, then you are obligated to perform all the duties of the covenants that "run with the estate"

Front 122

Assignment

Back 122

The transfer of the party's entire interest under the lease.

Front 123

{Assignment}
Privity of estate

Back 123

exists btwn Landlord and Assignee

Front 124

{Assignment}
Privity of Contract

Back 124

- Does not destroy the binding effect of a contract, unless there is relase and novation.
- Exists btwn
LL and T1
Not btwn:
LL and T2 unless there is consent by L to T2's assumption.

Front 125

A remainder created in an ascertained person and is ready to become possessory at preceding estates termination:

Back 125

Vested Remainder as
1) its given to an ascertained person and

2) property isn't subject to a condition precedent other than the natural termination of the preceding estate.

Front 126

{Assignment/Sublet}
Common Law (Creation)

Back 126

- If transfers the estate for the entire remainder it is an assignment
- If transfers the estate for anything less than the entire term it is a sublease
- Intent of parties is irrelevant

Front 127

{Assignment/Sublet}
Modern (creation)

Back 127

-Intent of the parties

Front 128

A remainder created in an unascertained person and is not ready to become possessory at preceding estates termination:

Back 128

Contingent Remainder as 1) its given to an unascertained person and 2) property transfer is subject to a condition precedent other than the natural termination of the preceding estate.

Front 129

Tenant Duties

Back 129

- Pay Rent
- Avoid Waste
- Refrain from illegal use
- Honesty as to intended purpose
- Duty not to commit nuisance
- Express lease provisions

Front 130

{Tenant Duties}
Pay Rent

Back 130

- Common Law: Pay no matter what
- Modern: Dependent on the landlord's performance of their obligations.

Front 131

{Tenant Duties}
Waste Avoidance

Back 131

- The tenant must avoid permissive or involuntary waste, and keep premises in good condition
- Does not have an implied duty to make any major repairs

Front 132

{Tenant Duties}
Refrain From Illegal Use

Back 132

- LL knows about it: Lease is unenforceable
- LL doesn't know: Less enforceable

Front 133

{Tenant Duties}
Honesty as to intended purpose

Back 133

- Can't misrepresent what they intend to do with the lease.

Front 134

{Tenant Duties}
Duties From Express Lease Provisions

Back 134

- The tenant has to comply with any express provisions in the lease.

Front 135

{Tenant Duties}
Circumstances excusing tenant of obligation

Back 135

- Common Law: No excuses
- Modern:
- Sole use becomes illegal
- Destruction of property
- Frustration of intended purpose

Front 136

The rule for classifying future interests after a life estate (2):

Back 136

1) If the first future interest created is a CR in FS then a second future interest will also be a CR in FS;
2) If the first future interest created is a VR in FS then a second future interest will be a divesting executory interest.

Front 137

{Tenant Duties}
(Tenant obligation excuses)
Sole use becomes illegal

Back 137

- if there is a specific use bargained for that becomes illegal the tenant is excused.
- If the premises may reasonably be used for another purpose by the tenant, the tenant is NOT EXCUSED.

Front 138

{Tenant Duties}
(Tenant obligation excuses)
Destruction of Property

Back 138

- releases, unless due to tenant negligence or intentional misconduct.

Front 139

{Tenant Duties}
(Circumstances excusing)
Loss by Eminent Domain

Back 139

- a portion of the money given by the gov. goes to the tenant equal to the fair market value of the remainder of the leasehold minus the rent obligation for that period.

Front 140

{Tenant Duties}
(Circumstances excusing)
Frustration of Intended Purpose

Back 140

- Only for commercial leases
- Very common and difficult to prove.
- Must prove:
1) There is an extreme harship
2) Caused by 3rd party's unforeseeable actions (usually gov)
3) The intended purpose is mutually intended
4) Intended purpose is virtually impossible to accomplish

Front 141

Tenants Rights

Back 141

- Common Law
- Quiet Enjoyment
- Illegal Lease
- Implied Warranty of Habitability

Front 142

{Tenants Rights}
Common Law

Back 142

- Tenant takes property as is except for the following exceptions:
1) Breach of promise to repair
2) Negligent repairs
3) Non-disclosure of latent defects
4) Breach of duty to maintain common areas.
- Not applied today.

Front 143

{Tenants Rights}
Quiet Enjoyment

Back 143

- Common Law: Landlord just can't come on land and do stuff.
Modern: Can be breached by Actual or Constructive Eviction.

Front 144

{Tenants Rights}
(Quiet Enjoyment)
Actual Eviction

Back 144

Total: The tenant is totally ousted from physical possession of the leased premises OR
Partial: from any part of the premises.

Front 145

{Tenants Rights}
(Quiet Enjoyment)
Constructive Eviction

Back 145

- Things that are bad enough to be considered an eviction, without actual eviction.
- Must be done by landlord or their agent.
- Must be a SUBSTANTIAL INTERFERENCE: renders the premises substantially unsuitable for the purpose for which they are leased or which seriously interferes with the beneficial enjoyment of the premises

Front 146

{Tenants Rights}
Illegal Lease

Back 146

- Subject of the lease is illegal.
- could be illegal use of housing, or it could be a violation of housing codes.
a. The illegality must exist at the outset of the lease.
b. Must be major.

Front 147

{Tenants Rights}
Implied Warranty of Habitability

Back 147

- Premise must be fit for human habitation.
- Elements: very fact specific.
i.Clean
ii. Safe: Judged by housing code.
iii.Healthy
iv. Fit for human habitation
- Unwaivable.
- No duty to repair

Front 148

{Tenants Rights}
(Implied Warranty of Habitability)
Breach

Back 148

i. Landlord must know, or have reason to know (notify LL)
ii. Give them reasonable time to fix.

Front 149

{Tenant Remedies}
Common Law

Back 149

- Move out and get consequential damages

Front 150

{Tenant Remedies}
Quiet Enjoyment

Back 150

Classic: Vacate and no more liability for rent + recover damages caused by eviction
Modern: Squishier. May be able to stay and sue for the difference in rent BTWN the actual worth and the paid rent.

Front 151

Which of the (3) defeasible fee simple possessory estates have reversionary or nonreversionary future interests?

Back 151

1) FS Determinable has possibility of reverter so only has reversionary future interests;
2) FSSCS has right of entry (power of termination) so only has a reversionary future interest;
3) FSSEL only affects future interests of transferees via executory interests so only has a nonreversionary future interest.

Front 152

{Tenant Remedies}
(Quiet Enjoyment)
Actual Eviction

Back 152

1. Total: Doesn’t have to pay rent.
2. Partial:
Traditional: no rent,
Academic: partial abatement of rent with option of termination or suit for damages.

Front 153

Rule that no interest is good unless it must vest within 21 years after some life in being at the creation of the interest.

Back 153

Rule Against Perpetuities to limit the control over the disposition of wealth forever into the future; Btw if an intervivos conveyance case then operating date is the moment of the transfer; otherwise the operating date is the date of death of the grantor.

Front 154

{Tenant Remedies}
Illegal Lease

Back 154

- Stay, and sue for the difference btwn the legal lease and what you have.

Front 155

{Tenant Remedies}
Implied Warranty of Habitability

Back 155

Differ among Jur.
- Stay and get damages
- Terminate and leave
- Stay and repair
- Stay and not pay rent
- Punitive damages

Front 156

{Tenant Remedies}
(Implied Warranty of Habitability)
Stay and Get Damages - Types

Back 156

- Value as warranted
- Value as-is
- Proportionate reduction

Front 157

{Tenant Remedies}
(Implied Warranty of Habitability)
Stay and Get Damages - Value as warranted

Back 157

difference btwn what you paid (premises as warranted) and how much the lease is actually worth in present condition plus damages for discomfort and annoyance (Hilder v. St. Peter)

Front 158

{Tenant Remedies}
(Implied Warranty of Habitability)
Stay and Get Damages - Value as-is

Back 158

difference between stated rent and actual fair value of the premises in their uninhabitable condition. (Kline v. Burns)

Front 159

2 steps in applying RAP:

Back 159

1) Does it apply and 2) Does it excise a clause in the grant.

Front 160

{Tenant Remedies}
(Implied Warranty of Habitability)
Stay and Get Damages - Proportionate Reduction

Back 160

obligation is reduced to a percentage of stated rent: find the percentage value of the as is value as a percentage of the as warranted value, and then apply that value to the stated rent. (restatement)

Front 161

{Tenant Remedies}
(Implied Warranty of Habitability)
Terminate and Leave

Back 161

- leave, and recover damages
- usually relocation costs plus the excess of replacement rentals over the lease rentals for the balance of the term.

Front 162

{Tenant Remedies}
(Implied Warranty of Habitability)
Stay and Repair

Back 162

- Deduct a reasonable amount from the rent.

Front 163

{Tenant Remedies}
(Implied Warranty of Habitability)
Stay and Pay no Rent

Back 163

- breach of IWOH is a complete defense to eviction for a failure to pay rent

Front 164

Devises pertain to transfers of property during this time.

Back 164

After the grantors death.

Front 165

Retaliatory Eviction

Back 165

- If the landlord evicts the tenant after they exercise their legal rights,
- LL has the burden of showing it was not retaliatory

Front 166

Conveyances pertain to transfers of property during this time.

Back 166

During the grantors life.

Front 167

Discrimination

Back 167

- There are certain things that you can’t discriminate on when renting or selling property.
- Created by 14th amendment, then civil rights acts, and finally fair housing act.

Front 168

{Discrimination}
Included Classes

Back 168

1. Race
2. Religion
3. National origin
4. Family status
5. Handicap status
6. Gender

Front 169

{Discrimination}
Not Included Classes

Back 169

1. Martial status
2. Number of occupants
3. Threatening mental disability
4. Pets
5. Profession
6. Age
7. Sexual orientation

Front 170

{Discrimination}
How to Prove

Back 170

1. P has to make a prima facie case by showing that he is a member of a statutory class that he applied for and did not get an apartment that remained available.
2. D then has to show why he refused the apartment to the plaintiff.
3. P can still rebut this by showing evidence of discrimination (testimony, etc.)

Front 171

{Discrimination}
Advertising

Back 171

Can’t advertise your religion and other features that can be discriminatory

Front 172

Law of Nuisance

Back 172

no person may use their own land in an unreasonable manner that SUBSTANTIALLY LESSENS another person’s use and enjoyment of their land.

Front 173

Private Nuisance

Back 173

is a SUBSTANTIAL INTERFERENCE with private rights to use and enjoy land.
- Can be intentional or unintentional

Front 174

{Private Nuisance}
Substantial

Back 174

Would the nuisance would substantially impede the enjoyment of land for an AVERAGE PERSON.

Front 175

{Private Nuisance}
Intentional

Back 175

- The person knows that the activity is interfering with the other’s right to use and enjoy land.
- Must also be unreasonable.

Front 176

Common law concurrent interest type 1:

Back 176

1) Tenancy in Common allows for separate but undivided possessory interests in the property; each have a right to posess ALL of the property notwithstanding their right of possession; owned in fractional shares for example.

Front 177

{Private Nuisance}
(Intentional)
Unreasonable

Back 177

- Does not mean a failure of due care.
- There are two different standards:
1) Restatement
2) Jost Threshold Test

Front 178

Common law concurrent interest type 2:

Back 178

2) Joint Tenancy is based on (TTIP Unities; if no TTIP then Tenancy in Common) in that interests must be acquired at the same Time same Title identical Interest right to all Possession concepts; JT can be conveyed but cannot be willed; however as a right of interest it does follow survivorship; If JT conveyed then survivorship is destroyed.

Front 179

{Private Nuisance}
(Intentional)
Unreasonable - Restatement: Harm v Utility

Back 179

- Harm v social utiloty
1. Harm
a. Extent of the harm
b. Character of the harm
c. Suitability of the use to the location??
d. Burden of avoiding the harm
2. Social Utility
a. Social value of conduct
b. Suitability to the location
c. Practical difficulty of preventing the harm

Front 180

Common law concurrent interest type 3)

Back 180

3) Tenancy by the Entirety (TTIP Unities and Marriage) cannot be transferred without spousal consent; partition is not readily available unless divorce is sought.

Front 181

{Private Nuisance}
(Intentional)
Unreasonable - Jost Threshold Test

Back 181

If the conduct reaches a certain level of interference, then it is unreasonable regardless of the social utility. (Jost v. Dairyland Power Coop)

Front 182

A joint tenancy helps avoid:

Back 182

Probate at the joint tenants death because JT is the practical equivalent of a will.

Front 183

{Private Nuisance}
(Intentional)
Unreasonable - Restatement: Uncompensated harm v. Ruinous Liability

Back 183

- If there is a serious harm and making D pay would not bankrupt him , he has to pay.
- Otherwise it is balanced by Harm v. Utility test.

Front 184

Inasmuch as the joint tenants interest ceases at death:

Back 184

A joint tenant has no interest that can pass by will

Front 185

{Private Nuisance}
Unintentional

Back 185

Nuisance where conduct is:
1. Negligent; OR
2. Reckless; OR
3. Ultrahazardous

Front 186

Public Nuisance

Back 186

Inflicts nuisance on a large class of people.

Front 187

{Covenants}
Creation

Back 187

Must be:
1) Written
2) Signed by both parties
3) Party must have notice
- Can’t be created by estopple, prescription, etc.
- For Burden to run: Hp and VP
- For Benefit: VP

Front 188

Severability of joint tenancy is based on modern need for (2):

Back 188

Marketability and alienability of property.

Front 189

{Covenants}
Horizontal Privity

Back 189

- Needed for the Burden and Benefit to run:
1. 2 original parties must have been parties to the covenant
2. The 2 parties must have a successive relationship: the land had to have been bought and sold by the original parties to each other.

Front 190

{Covenants}
Vertical Privity

Back 190

There must be Privity between the 1 of the original covenanting parties and the successor in interest (buyer)

Front 191

{Covenants}
Destruction

Back 191

1.Expressly in the deed
2.Changed conditions

Front 192

{Covenants}
(Destruction)
Changed Conditions

Back 192

- Almost impossible to show
1) Covenanted for character has been adversely affected.
2) Original purpose the covenant has been made has been thwarted.
i. Not a value vs. value test
ii. Must be entirely unsuitable for the original use in the covenant.

Front 193

Equitable Servitudes

Back 193

Like a covenant.
- Remedy: Injunction
- burden and benefit to run:
1) Only need VP
2) Partied must intend promise to run
3) Successive parties must have actual or constructive notice (or inquiry in a Sanbourne jurisdiction)
4) Covenant must touch and concern the land

Front 194

{Equitable Servitude}
Creation

Back 194

- Written
- VP
- Intent by original parties
- Subsequent PURCHASER must have actual or constructive notice of the covenant
- Covenant must touch and concern the land (Ponzi): Not gross

Front 195

{Equitable Servitude}
Sanbourne Rule

Back 195

For creation of ES
a. Common owner (of 2 or more lots)
b. Parcing out land
c. Notice: Could be inquiry notice

Front 196

Inquiry Notice

Back 196

- You may have to ask if there are covenants running with the land.
- If everything in the neighborhood looks the same, you are likely on notice

Front 197

{Equitable Servitude}
Destruction

Back 197

Done through ABANDONMENT AND WAIVER:
- Must be widespread. (Rick v. West) -The violations in the neighborhood must be so general as to frustrate the entire purpose.
- Very hard to show.

Front 198

{Covenants}
3rd Restatement

Back 198

- Abolishes the distinction between covenants and ES, calling them both covenants that run with the land.
- Only cares about whether they are negative or affirmative
- Remedy: Inj or $ damages

Front 199

{Covenants}
(3rd Restatement)
Negative

Back 199

- Treats these like easements
- Run to all subsequents possessors and owners of the burdened and benefited parties

Front 200

{Covenants}
(3rd Restatement)
Affirmative

Back 200

- Run to people who succeed to people who have estates of the same duration as the original covenanting party.

Front 201

{Covenants}
(3rd Restatement)
Touch and Concern Test

Back 201

Must have something to do with the land.

Front 202

Easement

Back 202

- A privilege to use the land of another.
- Can be negative or affirmative
- Appurtenant or in Gross

Front 203

Easement in Gross

Back 203

- These are for a specific person not for a landowner.
- EX: you can use my pool, fish in my pond, etc.

Front 204

(Easement in Gross)
Assignment

Back 204

- Only commercial easements
- All those with an interest hace to act together (Lutheran Case)

Front 205

{Easements}
Creation (Types)

Back 205

- Express
- Implied (prior Use)
- Necessity
- Prescription

Front 206

{Easements}
Express

Back 206

- Must be in writing.
Ways:
1) Reservation in grantor
2) Conveyance

Front 207

{Easements}
Implied

Back 207

An easement that is not in writing. there are 3 requirements:
1) There was a prior use
2) That use would be reasonably expected to continue
3) Notice

Front 208

4 types of leasehold estates:

Back 208

1) The Term of Years (fixed start and end dates)

2) The Periodic Tenancy (fixed periods that continue until either gives notice of termination)

3) The Tenancy at Will (endures so long as both desire)

4) The Tenancy at Sufference or Holdovers (arises when a tenant remains in possession after termination of the tenancy and results in eviction or consent of the holdover tenancy).

Front 209

{Easements}
Necessity

Back 209

- Landlocked easeents.
- Must have:
1) Common grantor - the land had to have been owned by the sae person at one time.
2) Necessity is there at the time of severance
3) It is strictly necessary (modern says substantial hardship)
4) courts will only imply for the seller (old timey)
Note: Only exists as long as the necessity does.

Front 210

{Easements}
Prescription

Back 210

Same elements as adverse possession:
1) Continuous
2) hostile
3) open and notorious
4) Actual

Front 211

Fair Housing Act 3603 and 3604 rules:

Back 211

3603a Application to certain dwellings; 3603b Single unit homes FHA exempt, multi unit homes not FHA exempt; 3604 No discrimination in the sale or rental of housing and other prohibited practices.

Front 212

{Easements}
Scope (types)

Back 212

1) Presault v. U.S. Rule
2) Traditional Rule
3) Restatement

Front 213

{Easements}
Presault v. U.S. Rule (Scope)

Back 213

- Can’t change the scope of an easement, you can only change it in a foreseeable manner (at the time of the easement), that is consistent with the terms of the original grant.  ex: like in character.

Front 214

{Easements}
Traditional Rule (Scope)

Back 214

- Traditional Rule: can’t change easement by servient or dominant tenement owner alone.
- They have to both agree

Front 215

{Easements}
Restatement (Scope)

Back 215

Servient owner can change location as long as it doesn’t significantly lessen the utility of the easement

Front 216

{Easements}
Termination

Back 216

1)Merge
2) Prescription- Interrupt for stat period
3) Deed
4) Abandon: Has to be more than non-use
Note: Foreclosure doesn't destroy.

Front 217

{Zoning}
Challenging

Back 217

Must either:
1) not affect the police power: Health, Safety, Welfare, or Morals.
2) be clearly ARBITRARY and UNREASONABLE.
- both are VERY HARD to prove.

Front 218

{Zoning}
Variance

Back 218

- Administrative permission to deviate from zoning ordinance. Run with the both.
Must show:
1) Undue Hardship
2) Doesn't frustrate the purpose or intent of ordinance

Front 219

{Zoning}
Undue Hardship (Variance)

Back 219

- Show that you can't do anything on the land.
- You are not entitled to have the property zoned for the most profitable use.
- Doesn’t include personal infirmity or hardship.
- Just because the property has changed hands does not negate undue hardship.

Front 220

{Zoning}
Special Exceptions

Back 220

- specific exceptions to the ordinance, with specific conditions that are set out by the legislative body.
- In order for there to be special exceptions that are consitituional the legislature has to give SPECIFIC guidelines as to what can be excepted, otherwise it is an unconstitutional delegation of the police power.

Front 221

{Zoning}
Exclusionary Zoning

Back 221

- : to be valid there must be a rational relationship between the ordinance and advancing public health and safety.

Front 222

5 elements for liability for private nuisance:

Back 222

1) Intentional invasion via acts for purposes to harm and LL know harm is substantially likely to result from nuisance;
2) Nontrespassory harmful conduct
3) Unreasonable interference if the gravity of the harm outweights the utility of the DFs conduct
4) Substantial interference if a normal person living in the community would regard as such
5) Interference with use and enjoyment of land.

Front 223

Can a solar-using neighbor get an injunction against a neighboring constructiont that would block sunlight?

Back 223

Yes see Prah v Maretti 1982 case because now

1) society regulates the use of landowners for the general welfare

2) sunlight has taken new roles in todays society and

3) the need for rapid development is no longer present (which governed the past rationale in part).

Front 224

The structure of authority underlying zoning (2):

Back 224

1) Enabling legislation via the exercise of police power to protect health safety welfare and morals by delegating the police power for zoning to local governments;

2) the comprehensive plan as a guide or blueprint for the local zoning boards decisions.

Front 225

Does the right to maintain a nonconforming use run with the land?

Back 225

Yes a nonconforming use may survive changes in ownership.

Front 226

Ways to terminate nonconforming uses:

Back 226

Destruction by act of God or otherwise usually terminates it and so too for abandonment which requires intent to abandon the nonconforming use; See Toys r us v Silva 1996 case where the nonconforming use was lost because it was substantially discontinued for two years; complete discontinuance was not necessary for loss of the privilege.

Front 227

Vested rights doctrine and estoppel:

Back 227

The rule of zoning law by which an owner/developer is entitled to proceed in accordance with the prior zoning provision where there has been a substantial change of position, expenditures or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance; a preexisting operation is protected while mere plans to engage in some use are insufficient.

Front 228

Why is achieving flexibility in zoning important?

Back 228

Euclidean zoning can work inequitable hardships, promote inefficient patterns of land use, slow new and needed construction, and inhibit socially and aesthetically desirable diversity.

Front 229

(2) Types of mechanisms for achieving flexibility in zoning:

Back 229

1) Variances as requests for deviations from the prevailing zoning ordinance and

2) Special exceptions (special use or conditional use permits) which allows a specific exception to the zoning regulations from a list of acceptable exceptions.

Front 230

May a self imposed hardship foreclose a buyer from being granted a variance?

Back 230

No generally if the buyer stands in the same position as the seller in regard to being granted a variance; Yes it does foreclose variances if the self imposed hardship is outright and blatant.

Front 231

Spot zoning factors (3)

Back 231

1) Small parcel is signled out for special treatment
2) Benefits a private party greater than the public
3) The treatment is not in accord with a comprehensive plan.

Front 232

Are controls on household composition by local ordinances constitutional?

Back 232

Yes see Village of Belle Terre v Boraas 1974 strict residential zoning case that held the police power is a valid basis for limiting the number of unrelated individuals that may inhabit a dwelling; But see Moore v East Cleveland 1977 City of St Barbara 1980 and others for a less deferential view by state courts.