Real Property

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REAL PROPERTY - MBE

Four Unities of Joint Tenancy

Back 1

Same:
T = Time

T = Title

I = Interest

P = right to Possess the whole

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REAL PROPERTY - MBE

Ways to sever Joint Tenancy

Back 2

Sale - Can sell w/o knowledge/consent of other JT

Partition - voluntary, judicial, forced sale

Mortgage - majority - doesn't sever unless default & foreclosure

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REAL PROPERTY - MBE

Tenancy for Years

Back 3

Lease for a fixed period of time

No automatic renewal

No notice needed to terminate

Greater than 1 year must be in writing (SofF)

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REAL PROPERTY - MBE

Periodic Tenancy

Back 4

Lease which continues for successive intervals until Landlord or Tenant give proper Notice of Termination
(Express or Implied)

Automatic Renewal
Notice Required

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REAL PROPERTY - MBE

Tenancy at Will

Back 5

Tenancy for unfixed period

Must be express
May terminate at any time
No Automatic Renewal
No Advanced Notice Required

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REAL PROPERTY - MBE

Tenancy at Sufference

Back 6

Created when Tenant has wrongfully held over past teh expiration of lease or term.

Lasts until:
Landlord evicts tenant or
Elects to hold tenant to new term.

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REAL PROPERTY - MBE

Tenant's Duties

Back 7

Duty to Repair

Duty Not to Waste

Duty to Pay Rent

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REAL PROPERTY - MBE

Types of Waste

Back 8

Voluntary Waste = overt harmful acts

Permissive Waste = neglect

Ameliorative Waste = alterations that increase the premises value

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REAL PROPERTY - MBE

Landlords options if Tenant Breaches while still in possession

Back 9

Evict through the courts

Continue and sue for rent due

Not engage in self help

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REAL PROPERTY - MBE

Landlord's option if Tenant Breaches and out of possession

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S = Surrender

I = Ignore

R = Re-let

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REAL PROPERTY - MBE

Tenant's Tort Liability

Back 11

Tenant is:

1) under duty to keep premises in reasonably good repair

2) liable for all tort injuries sustained by 3rd parties that Tenant invites onto property.

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REAL PROPERTY - MBE

Landlord's Duties

Back 12

Duty to Deliver possession

Implied covenant of quiet enjoyment

Implied warranty of habitability

Barred from Retalitory eviction

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REAL PROPERTY - MBE

Two views of Landlord's Duty to Deliver Possession

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Majority Rule (English Rule) Landlord Must put Tenant in actual Physical possession.

Minority Rule (American Rule) Landlord only required to give Tenant Legal possession.

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REAL PROPERTY - MBE

Implied Covenant of Quiet Enjoyment

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Tenant has the right to quiet use and enjoyment of the premises without interference from Landlord.

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REAL PROPERTY - MBE

Tenants requirements if Landlord beaches Implied Covenant of Quiet Enjoyment

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Tenant MUST show:

S = Substantial Interference

N = Notice given to Landlord with opportunity to cure.

G = Get out - Tenant must leave

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REAL PROPERTY - MBE

If Implied Warranty of Habitability Beached

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Tenant MUST:

M = Move out and terminate lease or

R = Reasonable repairs & deduct cost

R = Reduce rent/withhold rent until determined by court

R = Remain in possession, pay rent, and affirmatively seek money damages.

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REAL PROPERTY - MBE

Landlord's Tort Liability

Back 17

Landlord is under NO duty to make premises safe for Tenant and third parties

(see exceptions)

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REAL PROPERTY - MBE

Landlord's Tort Liability Exceptions:

Back 18

C = Common Areas

L = Latent defects

A = Assumption of repairs

P = Public use rule

S = Short term lease of furnished dwelling

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REAL PROPERTY - MBE

Easement

Back 19

The grant of non-possessory property interest that enables the holder to some form of use or enjoyment of another's land.

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REAL PROPERTY - MBE

Types of Easement

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Affirmative Easements

Negative Easements

Appurtenant to Land

Held in Gross

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REAL PROPERTY - MBE

Affirmative Easement

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Holder is entitled to go onto and do something on servient land.

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REAL PROPERTY - MBE

Affirmative Easement by Prescription Requirements

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C = Continuous

O = Open and Notorious

A = Actual Use

H = Hostile Use

(Permission defeats acquisition)

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REAL PROPERTY - MBE

Negative Easement

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Entitles holder to prevent servient landowner from doing something that would otherwise be permissible.

ONLY created expressly
MUST be in writing signed by grantor

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REAL PROPERTY - MBE

Negative Easements Apply to:

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L = Light

A = Air

S = Support

S = Stream Water (from artificial flow)

S = Scenic View

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REAL PROPERTY - MBE

Easement Appurtenant to Land

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Easement that benefits the holder in his physical use/enjoyment of his property

MUST have two parcels of land.

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REAL PROPERTY - MBE

Easement Held in Gross

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Confers upon its holder advantage that is not related to his use/enjoyment of his own land

NOT transferable Except in commercial purposes

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REAL PROPERTY - MBE

Termination of Easement

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E = Estoppel

N = Necessity

D = Destruction

C = Condemnation

R = Release

A = Abandonment

M = Merger

P = Prescription

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REAL PROPERTY - MBE

Termination of Easement by Estoppel

Back 28

Easement holder is estopped from enforcing the easement, if servient owner materially changes position in reliance on easement holder's assurances that will not be enforced.

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REAL PROPERTY - MBE

Termination of Easement by Necessity

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1) Easement implied as a result of necessity are terminated as soon as the necessity ends;

2) Easements expressly created does not end automatically once the necessity ends.

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REAL PROPERTY - MBE

Termination of Easement by Destruction

Back 30

Easement terminated by destruction of teh servient land.

Exception: Destruction resulting from willful conduct of the servient owner.

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REAL PROPERTY - MBE

Termination of Easement by CONDEMNATION

Back 31

Easement is terminated by Condemnation of the servient estate.

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REAL PROPERTY - MBE

Termination of Easement by RELEASE

Back 32

Easement can be terminated by release given by the easement holder to the servient owner

MUST BE IN WRITING

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REAL PROPERTY - MBE

Termination of Easement by ABANDOMENT

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Easement holder must demonstrate by physical action, that he never intends to use the easement again.

MERE NON-USE/WORDS ARE INSUFFICIENT TO TERMINATE BY ABANDONMENT

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REAL PROPERTY - MBE

Termination of Easement by MERGER

Back 34

Unity of Ownership Doctrine

Easement is extinguished when title to the easement and title to the servient land become vested in the same person.

NOT REVIVED BY LATER SEPARATION

Easement + adverse possession = merger

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REAL PROPERTY - MBE

Termination by Easement by PRESCRIPTION

Back 35

Servient owner may extinguish the easement by interfering with it in accordance with the elements of adverse possession.

C - Continuous
O - Open and notorious
A - Actual (not exclusive)
H - Hostile to easement holder

NOT FORFEITED BY EXCESSIVE USE

Front 36

REAL PROPERTY - MBE

License

Back 36

Mere privilege to enter another's land for some delineated purpose

NO WRITING REQUIRED

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REAL PROPERTY - MBE

Termination of a License

Back 37

Licenses are freely revocable at the will of the licensor.

Exceptions:
1) Revocation barred when licensee has invested substantial money/labor in reliance

2) License + interest NOT freely revocable

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REAL PROPERTY - MBE

Profit

Back 38

Entitles its holder to enter the servient land and take from it the soil or some substance of the soil such as minerals/timber/oil.

CREATION/TERMINATION: same as easement

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REAL PROPERTY - MBE

Real Covenant

Back 39

Promise to do or not to do something related to land which runs with the land and thus may be enforced against successors in interest at law.

NOT GRANT OF PROPERTY INTEREST

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REAL PROPERTY - MBE

Types of Real Covenants

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1) Restrictive Covenants

2) Affirmative Covenants

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REAL PROPERTY - MBE

Step 1 to determine if the Covenant runs with the land

Back 41

Analyze the BURDEN Side:

W - Writing

I - Intent

T - Touch and Concern the land

H - Horizontal & Vertical Privity of Estate

N - Notice

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REAL PROPERTY - MBE

Step 2 to determine if the Covenant runs with the land

Back 42

Analyze the BENEFIT Side:

W - Writing

I - Intent

T - Touch and Concern

V - Vertical Privity

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REAL PROPERTY - MBE

Equitable Servitude
(Injunctive Relief)

Back 43

A covenant that, regardless of whether it runs with the land at law, equity will enforce against assignees of the burdened land who have notice

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REAL PROPERTY - MBE

Equitable Servitude Requirements

Back 44

W - Writing

I - Intent

T - Touch & Concern

N - Notice

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REAL PROPERTY - MBE

Reciprocal Negative Servitude (Implied Equitable Servitude)

Back 45

Common Scheme Doctrine:

A court will enforce a reciprocal negative servitude to hold the unrestricted lot holder to the restrictive covenant

1) When sales began there was a general scheme for residential development including Plaintiff's lot;

2) Defendant lotholder had notice of teh promise contained in the prior proceeding

A) Actual
B) Inquiry Notice
C) Record Notice

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REAL PROPERTY - MBE

Equitable Defenses to Enforcement of an Equitable Servitude

Back 46

Impossibility: Changed Condition

Termination

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REAL PROPERTY - MBE

Covenant v. Equitable Servitude

Back 47

If Plaintiff seeks $ damages = Covenant

If Plaintiff seeks an injunction = Equitable Servitude

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REAL PROPERTY - MBE

Adverse Possession

Back 48

Possession for a statutorily prescribed period of time that can if certain elements are met, ripen to title.

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REAL PROPERTY - MBE

Requirements for Adverse Possession

Back 49

C - Continuous

O - Open and Notorious

A - Actual and Exclusive

H - Hostile

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REAL PROPERTY - MBE

Adverse Possession Disabilities

Back 50

The Statute of Limitations will not run against a true owner who is afflicted by a diability at the inception of Adverse Possession.

- Disabilities: insanity, infancy, imprisonment

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REAL PROPERTY - MBE

Constructive Adverse Possession

Back 51

Actual possession of portion of land under color of title gives rise to adverse possession claim as to entire tract of land described in deed.

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REAL PROPERTY - MBE

Requirements for Constructive Adverse Possession

Back 52

MUST:

* Enter into actual possession of some portion of the property under color of right;

* Enter the property under good faith belief that the instrument is valid;

* Occupy a significant portion of property as compared to whole;

* Property described in the deed must be understood in the community to be a single parcel.

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REAL PROPERTY - MBE

Statute of Frauds Requirement for Land Contract.

Back 53

* Land Contract must be in writing;

* Land Contract must be signed by the party charged;

* Land Contract must describe the land;

* Land Contract must state some consideration.

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REAL PROPERTY - MBE

What is the Exception to Land Sale Contract necessity for Writing

Back 54

Doctrine of Part Performance
(2 of 3 must be satisfied)

1) Buyer takes physical possession of land

2) Buyer pays all/part of the purchase price;

3) Buyer makes substantial improvements to the land.

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REAL PROPERTY - MBE

Implied promise in Land Contract

Back 55

* Seller promises to provide marketable title;

* Seller promises not to make any false statements of material fact;

* Buyer promises to notify of defect & give time to cure;

* Land contract contains no impled warranties of fitness or habitability.

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REAL PROPERTY - MBE

What is "Marketable Title"?

Back 56

Title free from reasonable doubt/lawsuits/threat of litigation.

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REAL PROPERTY - MBE

Circumstances rendering title unmarketable.

Back 57

1) Adverse Possession

2) Encumbrances;

3) Inability of seller to establish a record chain of title;

4) Zoning violation

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REAL PROPERTY - MBE

Deed

Back 58

Passes legal title from seller to buyer.

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REAL PROPERTY - MBE

Requirement for Deed to pass

Back 59

L - Lawful E - Execution = writing signed by grantor, description of land
A - and
D - Delivery = presentation to deliver immediately as opposed to act.

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REAL PROPERTY - MBE

Quit Claim Deed

Back 60

* Contains no Covenants;

* Grantor isn't promising he has title to convey.

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REAL PROPERTY - MBE

General Warranty Deed

Back 61

* Warrants against all defects in the title including those attributable to grantor's predecessors.

* contains present & future covenants

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REAL PROPERTY - MBE

Present Covenants

Back 62

(At the time Delivered)

* Covenant of Seisen - Gee promises he owns the estate that he claims to convey;

* Covenant of Rt to Convey - Gee has power to make this conveyance;

*Covenant against Encumbrances - Gee promises there are no mortgages on the land.

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REAL PROPERTY - MBE

Future Covenants

Back 63

(Grantee Disturbed of Possession)

* Covenant for Quiet Enjoyment - Gee promises that grantee will not be disturbed in possession by 3rd party claim of title;

* Covenant of general warranty - Gor promises to defend Gee should there be any lawful claim of title by another;

* Covenant of futher assurances - Gor promises to do whatever future acts reasonably necessary to perfect grantee's title if later found to be imperfect.

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REAL PROPERTY - MBE

Statutory Special Warranty Deed

Back 64

* Provided by Statute

* Grantor makes NO representations on behalf of predecessors

* Contains two promises:
1) he hasn't conveyed to anyone else

2) The estate is free from encumbrances made by grantor.

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REAL PROPERTY - MBE

Brightline Rules for Recording Systems

Back 65

O => A O =>B O is dirty double dealer

If B is BFP in Notice Jurisdiction: B wins regardless if recorded first;

If B is BFP in Race Notice Jurisdiction: B wins if she records properly before the other party.

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REAL PROPERTY - MBE

What is a Bona Fide Purchaser?

Back 66

A Buyer who:

1) Purchases property for VALUE;

2) WITHOUT NOTICE that someone got there first.

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REAL PROPERTY - MBE

Types of Notice

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Actual Notice

INQUIRY NOTICE - examination of land would reveal possession whether or not one actually goes and looks

RECORD NOTICE - prior deed properly recorde within chain of title

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REAL PROPERTY - MBE

Recording Statutes

Back 68

NOTICE STATUTE: conveyance of an interest in land shall not be valid against any subsequent purchaser for value and without notice (BFP)

RACE-NOTICE STATUTE: Conveyance of an interest in land shall NOT be valid against any subsequent purchaser for value and without notice thereof whose coveyance is FIRST RECORDED. (BFP & win Race)

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REAL PROPERTY - MBE

Shelter Rule for Chain of Title

Back 69

One who takes from a BFP, even if not himself a BFP, will prevail against any entity that the transferor or BFP would have prevailed against.

Transferee "takes shelter" in status of transferor.

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REAL PROPERTY - MBE

Wild Deed problem with Chain of Title

Back 70

(Improper Recordation)

If a deed, entered on the records, A =>B has a grantor unconnected to the chain of title (O => A) then that deed is a wild deed incapable of giving record notice of its existence and is treated as if it was NEVER recorded.

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REAL PROPERTY - MBE

Estoppel by Deed for Chain of Title

Back 71

One who conveys realty in which he has no interest is estopped from denying the validity of that conveyance, if he subsequently acquires the interest that he had previously transferred.

Recordation of invalid deed nullity.

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REAL PROPERTY - MBE

Mortgage

Back 72

Conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a monetary obligation.

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REAL PROPERTY - MBE

Two Elements of a Mortgage

Back 73

1) A Debt

2) A voluntary transfer of a security interest in debtor's land to secure the debt.

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REAL PROPERTY - MBE

Elements of HOLDER IN DUE CARE

Back 74

1) Original note must be NEGOTIABLE;

2) Original note must be ENDORCED;

3) Original note must be DELIVERED to transferee;

4) Transferee must take the note in GOOD FAITH;

5) Transferee must pay VALUE for the note.

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REAL PROPERTY - MBE

Holder in Due Course Real Defenses

Back 75

M = Material Alteration;
D = Duress;
F = Fraud
I = In
F = Factum (a lie about nature of the instrument)
I = Incapacity
I = Illegality
I = Infancy
I = Insolvency

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Assumed the Mortgage

Back 76

* Buyer primarily liable;

* Seller - Mortgager remain seconarily liable;

* Lender becomes TPB of the agreement

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REAL PROPERTY - MBE

Subject to the Mortgage

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* Seller-Mortgager is personally liable;

* Buyer is NOT personally liable.

Mortgage if recorded remains on the land and can be foreclosed.

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REAL PROPERTY - MBE

Effect of Foreclosure on Various Interests

Back 78

1) Foreclosure will terminate interests junior to being foreclosed

2) Foreclosure will not affect senior interests

3) If necessary party not joined interest will not be termianted.

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REAL PROPERTY - MBE

Priorities

Back 79

1) Recordation -
NOT RECORDED = no priority until recorded
RECORDED = First in time, first in right

2) Purchase Money Mortgage - Superpriority

3) After acquired Collateral Clause

4) Subordination Agreements

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REAL PROPERTY - MBE

Purchase Money Mortgage

Back 80

A mortgage given to secure a loan that enables the debtor to acquire the encumbered property.

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REAL PROPERTY - MBE

Redemption in Equity

Back 81

Generally => Debtor has the right to redeem the land and free it from the mortgage.

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REAL PROPERTY - MBE

Acceleration Clause

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Permits the mortgagee to declare the full balance due in the event of default.

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REAL PROPERTY - MBE

Clogging the Equity of Redemption

Back 83

Debtor/Mortgager may NOT waive the right to redeem the mortgage itself.

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REAL PROPERTY - MBE

Statutory Redemption

Back 84

Gives the debtor/mortgager a statutory right to redeem

Typically 6 months to 1 year after foreclosure.

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REAL PROPERTY - MBE

Lateral/Sub-Adjacent Support

Back 85

Liability => adjacent landowner's excavation cause land to cave in -

USE NEGLIGENCE STANDARD

Exception: P shows improvement on P's land did not contribute to collapse - strict liability.

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REAL PROPERTY - MBE

Riparian Doctrine
(water rights)

Back 86

* water belongs to those who own the land bordering the water course
= Natural Flow Theory
= Reasonable Use Theory

* All riparians have equal rights
= Allowed to take water "reasonably" needed for natural use
= NOT ALLOWED to take for artifical use.

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Exception to Riparian Doctrine

Back 87

Can take for artificial use to the extent that there is enough water for domestic needs of all other riparian owners

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Prior Appropriation Doctrine

Back 88

* The water belongs initially to the state but the right to divert it and use it can be acquired by individual regardless of whether he happens to be a riparian owner.

* Rights are determined by priority of beneficial use.

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REAL PROPERTY - MBE

Groundwater/perculating waters

Back 89

Water beneath the surface of the earth that is not confined to a known channel

Surface owner entitled to make reasonable use of groundwater but must NOT BE WASTEFUL

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REAL PROPERTY - MBE

Surface Water

Back 90

(Unnecessary harm to other's land prohibited)

Waters which come from rain, springs or melting snow and which have not yet reached the natural watercourse.

Common Enemy Rule: Surface water is the common enemy.

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REAL PROPERTY - MBE

Zoning

Back 91

Government may enact statutes to reasonably control land use pursuant to its police power.

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REAL PROPERTY - MBE

Variance

Back 92

Principal means to achieve flexibility in zoning.

The proponent must show:
1) UNDUE HARDSHIP and
2) The variance WON'T WORK DETRIMENT to surrounding property values.

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REAL PROPERTY - MBE

Nonconforming Use

Back 93

A once lawful, existing use now deemed nonconforming by a new zoning ordinance.

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REAL PROPERTY - MBE

Unconstitutional Exactions

Back 94

Those amenities that government seeks in exchange for granting permission to build.