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383 Cards in this Set
- Front
- Back
- 3rd side (hint)
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4 areas to consider in real property
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land AQ, Land use, Landlord and tenant, Estates and future interests
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land AQ - adverse possession elements 3 categories
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physical, mental and time
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and AQ - adverse possession elements under physical
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actual, open notorious, exclusive
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and AQ - adverse possession elements under mental
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permissive entry, GF, color of title, co-tenants
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and AQ - adverse possession elements under time
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statute,continuous, tracking
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and AQ - adverse possession all elements top to bottom
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actual open, notorious, permissive entry, GF, color of title, co-tenant, statute, continuous, tacking
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issues in land AQ
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adverse possession, land sale contracts, conveyancing
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issues in land use
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easements, equitable servitudes, profits, licenses, covenants running with the land
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issues in landlord tenant
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rent, tenant's defenses, condition of premises, effect of transfer
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issues in estates and future interests
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possessory, concurrent, future
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Land AQ - adverse possession- actual open notorious
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conduct conforms to typical use of an owner - mountain cabin in summer etc
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Land AQ - adverse possession actual noto exclusive
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act like an owner -physically use land in such a way that reasonable true owner would have notice
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Land AQ - adverse possession
open, noto, actual, exclusive |
use consistent with nature an character of P
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Land AQ - adverse possession
P taxes required - Maj min |
Majority no Min yes
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Land AQ - adverse possession
exclusive |
to exclusion of all others
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Land AQ - adverse possession
exclusive - multiple persons ok |
ok because they are acting t the exclusion of all others
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Land AQ - adverse possession
exclusive - multiple persons state of quiet title - how vest |
co-tenants tenant in common
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Land AQ adverse possession - hostile requirement
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occupying in derogation of any claim of ownership
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land AQ - adverse possession - have to know you are adversely possessing P-
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no
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Land AQ - adverses possession- 4 mental issues
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permissive entry, GF,color of title, co-tenants
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Land AQ - adverse possession- permissive entry
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if you get PE your claim fails - cannot claim where true owner communicates permission to claimant
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Land AQ - adverse possession- permissive entry - silent permission negate hostility
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no - claimant thinks they are hostilely possessing
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Land AQ - adverse possession- GF
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need not act in GF - MAJ may possess in bad faith MIN will not allow a bad faith claim
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Land AQ - adverse possession- color of title satisfy hostility/mental element
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yes - claimant enters under a facially valid deed
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Land AQ - adverse possession- mental - can co-tenant adversely possess
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must oust co-tenant acting in derogation of co-tenant's rights
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Land AQ - adverse possession- time - statute
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must possess continuously for the statutory period
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Land AQ - adverse possession- time - statute
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vary from 5 to 20 years no clear MAJ rule- assume common law period of 20 - at least 5 years then there is an adverse P issue
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Land AQ - adverse possession- time - statute- continuous
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use consistent with the nature and character of the P
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Land AQ - adverse possession- time - tacking of periods allowed
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yes where adverse possessor 1 and 2 have oral or written agreement
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land AQ - satisfied all elements what scope of ownership - 3 categories
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horizontal, vertical, future
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land AQ - satisfied all elements what scope of ownership horizontal
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all P claimant actually occupies
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land AQ - satisfied all elements what scope of ownership horizontal constructive AP
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(1) enter under color of title, (2) must use significant portion of land = CAP of the entire parcel described in deed
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Land AQ - satisfied all elements what scope of ownership constructive AP - must buyer occupy significant portion of P
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yes he gets the entire parcel even under fraudulent deed
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Land AQ - satisfied all elements what scope of ownership - vertical -
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yes all mineral rights unless the mineral rights were already conveyed through severance at time of entry then only surface rights
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Land AQ - satisfied all elements what scope of ownership - future
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fee simple absolute unless true owner already conveyed future interest before possessor enters
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Land AQ - satisfied all elements - true owner's disabilities
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statute does not toll if true owner suffers from legal disability at time of entry - must be in existence at time of entry and only the disability in effect at time of entry tolls
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Land AQ - satisfied all elements - true owner's disabilities - 3 categories of disability
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infancy, insanity, imprisonment
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Land AQ - satisfied all elements - true owner's rights
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before statute runs ejectment and damages under quasi-contract for rent and general damages,
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Land AQ - satisfied all elements - true owner tack disabilities
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no
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Land AQ - satisfied all elements - adverse possessor's rights
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rights of ejectment, nuisance, damages from trespass to land except as against true owner
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land sale contract required to AQ title
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no
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Land sale contract contract issues
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formation, performance, remedy
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Land sale contract contract - formation
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SOF sufficient memo exception - part performance buyer pays , takes possession or make improvements P+P
Possession + improvement possession + payment |
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Land sale contract contract - performance - 3 condition the 3 t's
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marketable title, tender, Time of Essence
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Land sale contract contract - title
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seller must delivery marketable title to force buyer to pay
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Land sale contract contract - marketable title
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reasonably free of defects
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Land sale contract contract - title - buyer has deed and discovers defect
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cannot sue for breach because it merges into deed - must sue under warranties of title
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Land sale contract contract - seeking specific performance must tender
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yes except recipient of anticipatory repudiation
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Land sale contract contract - performance - Time of Essense
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generally enforced expect forfeiture
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land sale contract contract remedy - 2types
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SP or damages
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land sale contract contract remedy - checklist for SP
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inadequate remedy at law, definite and certain contact, feasibility, defenses, mutuality
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land sale contract contract remedy - injunction generally not sought but could encounter
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enforce contracts, enforce easement - apply tort or contract checklist
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land sale contract contract risk of loss - equitable conversion - traditional and still majority
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buyer takes equitable title and bears risk of loss - buyer must buy even if destroyed
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land sale contract contract risk of loss - uniform act - minority
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risk of loss remains with seller
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post closing issues - covenants of title - 6
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Seisen, right to convey, encumbrances, quiet enjoyment, warranty, further assurances
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risk of loss - uniform act - wen does risk pass to buyer
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when buyer takes title of possession
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fight after closing 2 issue areas
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covenants of title and security interests
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covenants of title - warranty or quit claim
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warranty deed - carries 6 covenants of title
quit claim makes no warranties |
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covenants of title - Seisen, right to convey and encumbrances- when breach
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can only be breached if title is defective at closing
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covenants of title - quiet enjoyment, warranty and further assurance
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defect arises after closing
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covenants of title - Seisen,
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seller warranties she owns
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covenants of title - encumberances
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no visible or invisible encumbrances- servitudes unpaid morts zoning vios
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covenants of title - right to convey
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seller warranties power to convey - no spousal CP parties etc
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covenants of title - quiet enjoyment
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warranties possession will not be disturbed by anyone with a valid claim to P - grantee may sue grantor
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covenants of title - warranty
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covenants grantor will defend grantee's title
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covenants of title -further assurance
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covenants will act like a title insurance company - will further defend title - affirmatively protect grantee's title
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remedy for breach of covenant of tile
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damages - $ back with interest
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post closing issue - RP security interests or mortgages
creation and labels 3 |
mortgage, deed of trust, and land sale K
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post closing issue - RP security interests or mortgages
mortgage |
mortgage is sec in P giving mortgage to lender secure debt - judicial foreclosure at default
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post closing issue - RP security interests or mortgages
deed of trust |
security INT given by trustor to the trustee 3rd p who holds for B who is lender allows for private sale at default
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post closing issue - RP security interests or mortgages
land sale installment K |
buyer does not get title but makes payments and gets title at final payment
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Rights and priorities - who is senior interest holder
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first in time - first lender - everyone below is junior
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Rights and priorities - who is junior INT holder
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takes INT after senior or purchase $ MTG
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Rights and priorities - junior - foreclosure rights
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yes - can force but senior still takes first
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Rights and priorities - junior right to redeem
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yes
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Rights and priorities - junior rght to notice of foreclosure sale
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adequate to protect INT - otherwise sale can be cancelled
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Rights and prioorities - land owner
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right during pendenecy of foreclosure to get current - and period of redemption
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rights and priorities - land owner/debtor deficiency judgment
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short sale - statute dependent - vary from state to state
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Rights and priorities - land owner debtor - transferees assumption and subject to
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deficiency judgment lender can sue transferee where B assumed the mort but if B took title subject to then B will not be personally liable
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mortgage assumption and subject to - look for novation
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novation releases the first party and transferee is liable
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conveyancing - deeds 4 elements
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parties, words of transfer, description, grantor's signature
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conveyancing - valid deeds - parties
A->B A->C |
both parties must be adequately described - general charitable intent creates charitable trusts
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conveyancing - valid deeds - words of transfer
A->B A->C |
there must be explicit words of transfer - must show grantor intends to make a present transfer
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conveyancing - valid deeds - description
A->B A->C |
valid description - more detailed more likely there is something wrong with description - may not form a square or quantity -extrinsic evidence is admissible to cure
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conveyancing - valid deeds - grantor's signature
A->B A->C |
all deeds require - extension to SOF - deeds must be in writing and signed by party to be charged - grantee sig not required
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3 big issues in conveyancing
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deeds, delivery, and recording act
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deed conveyance require consideration
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no
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deed conveyance require notary
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no recording might but no convey
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must deeds state quality of title
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no
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time of performance no specified in deed
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reasonable time
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delivery of deed
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grantee must establish a vlid deed and valid delivery but need not be actual literal - getting physical deed is not dsipositive
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delivery deed - essential issue
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grantor's intent- must have intent to make a present transfer
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testing scenarios for delivery - 3
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grantor gives grantee deed, grantor retains deed, or grantor gives deed to 3rd p with instruction to deliver
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delivery grantor gives deed to grantee- general rule - parole evidence allowed
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valid delivery is presumed - rebuttable presumption but not with parole evidence - cannot admit other contemporaneous or previous language that contradicts face of deed
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delivery - grantor retains deed- presumption - rebuttable?
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presumption of no delivery - is rebuttable - parole evidence rule is no bar because it does not contradict face due to no delivery
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delivery - grantor gives deed to 3rd p
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donative or commercial
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grantor gives deed to 3p
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donative = gift , commercial = actual purchase
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delivery donative
A-> X -> B A-> C I give this deed to you X to give to B right now |
B previals
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delivery donative
A-> X -> B A-> C I give this deed to you X to give to B when I die |
B prevails - presently transferring a future interest
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delivery donative
A-> X -> B A-> C I give this deed to you X to give to B when I die if B is alive |
C prevails - conditional delivery
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conditional delivery commercial - relation back doctrine
A->X->B A->C |
B prevails unless C is BFP
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conditional delivery commercial - estoppel theory
A->X->B A->C |
C prevails if A is estopped - B gets deed too early because he did not pay money or condition did not satisfy - A said he did not get $ unless A was negligent or fraudulent
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condition not met
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recording act - claimant protected - 4 parties
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purchaser, mortgagee, judgment creditor, heirs & donees
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recording act - claimant protected - purchaser
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most likely party in MBE or essay - purchasers are protected - that is purpose of recording act - consideration?
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recording act - claimant protected - mortgagee
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paid value? new debt =yes, old debt=no - claimant is bank - new debt yes because they paid value
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recording act - claimant protected - judgment creditor
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paid value? usually will not be protected because they have not given except
1) creditor who records is protected against subsequent purchasers 2) if statute expressly protects then yes they are protected 3) records judgment then exchanged for P have given value so yes |
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common law rule - recording
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first in time prevails
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recording act - claimant protected - heirs and donees
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no because they don't pay any value against prior purchasers but against subsequent purchaser if they record
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transaction protects in recording act - types of index
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tract and grantor/grantee
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transaction protects in recording act - types of statutes 3
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notice = claimant take w/o notice or in GF in order to prevail but no duty to record, race notice = take w/o notice and first to properly record, race = first to record
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transaction protects in recording act - take w/o notice
actual |
actual notice -not common on exam
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transaction protects in recording act - take w/o notice
inquiry |
gramtee caimant will be charged with making a reasonable inquiry abt P - duty to make inquiry - ask a few question and inspect - whatever would have been revealed
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transaction protects in recording act - take w/o notice
inquiry - remote land - in winter |
only reasonably could have inspected
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recording act statute
notice |
no requirement to record simmply take w/notice
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recording act statute
race notice |
first to record and take w/o notice
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transaction protected if takes w/o any of three forms of notice
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actual, inquiry, constructive
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transaction protects in recording act - take w/o notice
constructive - 4 types |
big issue - deed recorded early, deed recorded too late, wild deed, collateral docs
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first to record
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only in race or race notice statute - properly record
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J 1 A->B Constructive Notice
F 1 A->C records M 1 B records |
notice =when C records B had not recorded so deed recorded late gives no constructive notice
race notice = C prevails because 1st to record |
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J 1 A->B constructive notice
F 1 A->C records M 1 B records A 1 C records |
B ins at common law
C paid value took w/o notice notice C had no notice so C prevails race notice C recorded too late so B takes |
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J 1 P->X ?constructive notice
F 1 A->B records M 1X-> A records A 1A->C C records |
wild deed = no con notice
B deed recorded too early X to A is estoppel by deed B prevails because grantor is estopped to deny he had title most will protect C if C paid w/o notice - no duty to find A to B |
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J 1 C->D ?constructive notice
F 1 C->E records M 1 D records A 1 E->F F records |
if E paid value F is protected under shelter rule - if E did not pay value then CtoD is recorded too late so F prevails
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notice
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not valid against subsequent PFV except having actual notice unless properly recorded
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race notice
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void against subsequent GF PFV who records first
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land use - non-possessory interests -easements three issues
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creation, scope, termination
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land use - non-possessory interests -profits - 3 issues
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creation, scope, termination
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and use - non-possessory interests -licenses - 2 types
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revocable/irrevocable
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easements - 3 step approach
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creation, scope, termination
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easements - 3 step approach - creation
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3 ways 1) expressly, 2) implicitly, 3) prescription
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easements - 3 step approach - creation - implication - 2 types
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grant/reservation, necessity
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easements - 3 step approach - creation - implication - grant/ reservation
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common use, prior use, reas necessity
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easements - 3 step approach - creation 2 problems with express easement
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SOF - writing - easement or conveyance of fee or ownership
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easements - 3 step approach - creation - implication - necessity
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common ownership or strict necessity
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easements - 3 step approach - creation - implication - grant/ prescription - 3 elements
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physical, mental time
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easements - 3 step approach - creation - implication - reservation or grant
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if grantor has right then implied by reservation but if grantee is asserting right then it is easement implied by grant - grantor reserves while grantee gets grant
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easements - 3 step approach - creation - implication - grant or reservation reasonable necessity
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if B purchased and only way to get to road is right of way then reas neceesity
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easements - 3 step approach - creation - implication - necessity - common ownership
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common ownership of both holder and servient parcels
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easements - 3 step approach - creation - implication - necessity - strict necessity
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rights of way out of a land locked parcel must have easement -
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water access defeat a case of strict necessity in easement
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traditionally yes but modernly likely not
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prescriptive easements physical element
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open notorious actual with hostile intent
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prescriptive easements mental element
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hostile - permissive?
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prescriptive easements time element
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running the SOL
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easement scope holder - express
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reasonable use as against express restrictions
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easement scope holder wants to transfer - appurtenant or in gross
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appurtenant = benefit land so cannot be transferred except to sell whole parcel - non severable
in gross = benefits personally but not interest in land like phone co fully transferable |
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easement scope holder - no express
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reasonable - overuse does not terminate an easement but court will enjoin excessive use
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easement scope - servient
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burdened by easement - absent express restrictions - reasonableness test - changes in needs permitted
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easement scope - servient
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evolutionary changes yes but revolutionary changes no - holder has right to enter to fix
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easements termination 3 categories of destroyers
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holder , destruction, others
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easements termination
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unless otherwise stated easements remain in perpetuity
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easements termination - legally sanctioned means of termination - holder 4 types
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merger,severance,abandonment, surcharge
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easements termination - legally sanctioned means of termination - holder merger of title
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after creation both dominant and servient parcels come back togther then you can't own a restriction on your own land
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easements termination - legally sanctioned means of termination - holder - severance
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transfer in gross or attempt to transfer appurtenant easment
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easements termination - legally sanctioned means of termination - holder - abandonment
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not just non-use but stop using and d an act to abandon - railroad stops using tracks for 5 years AND pull up tracks then they have abandoned - just not using is not enough
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easements termination - legally sanctioned means of termination - holder - surcharge
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terminates excessive use through injunction suh as where holder tries to charge cars for passage beyond express restriction
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termination - destroyed
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not generally unless the whole reas for E is destroyed like whole bldg
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termination 3rd p easement
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prescription like adverse possession, estoppel orally or by conduct that affimitively causes detrimental reliance servient
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easement termination - BFP 3rd party
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sale to BFP can terminate - favorite bar examiners - also applies to profits licenses etc
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easement - termination BFP inquiry notice
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check for inquiry notice - if record then constructive notice
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profits definition
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right to go onto P and take natural resource = easement +
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profits 3 step approach
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creation, scope, termination
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how can profits be created
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only by express writing - no implied profits
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profits scope problems
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exclusive or non-exclusive = same scope rule applies holder cannot unduly interfere with profit holders rights
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profits - termination
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differs from easements in that surcharge terminates a profit
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licenses - 3 types
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revocable and irrevocable
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licenses - revocable
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easement minus because typically revocable permission to use land
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profits - revocable - writing
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ticket to see movie
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license revocable - notice of revocation required
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no
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license irrevocable - 2 types
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coupled with interest where personal P located on servient estate and executed easement by estoppel
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license irrevocable - duration
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reas amount time to complete - get car off P
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icense irrevocable - executed by estoppel
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oral permission to build irrigation system then detrimental reliance so cannot cancel
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license - duration under easment by estoppel
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amortized according servient reliance
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covenants and servitudes- dominant and servient - who burdened and who benefitted
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dominant benefited and servient burdened
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covenants writing and remedy
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required and $
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equitable servitudes - writing and remedy
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required and injunction
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implied reciprocal servitudes writing and remedy
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not required in D's deed and injunction
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covenants A v B Contract
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original agreement no C&S no running with land
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covenants and servitudes 1st questions
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who is fight between ?
2 original parties no need to discuss C&S |
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C&S - A v B1, A1 v B, A1 v B1
4 issue areas |
touch concern, intent, notice B or B1 an rpivity - hor or vert
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C&S - A v B1, A1 v B, A1 v B1
touch and concern covenants |
if P is A1or A2 then benefit run? does C increase use and enjoyment of benefited parcel - Y it touches else No - servient does it decrease use and enjoyment
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C&S - A v B1, A1 v B, A1 v B1
intent covenants |
intent that restriction should run with the land - generally inferred from t&C
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C&S - A v B1, A1 v B, A1 v B1
notice B or B1 covenants |
heavily tested D must have notice of restricton - check for inquiry notice
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C&S - A v B1, A1 v B, A1 v B1
privity horz required and definition? covenants |
yes - original parties to restriction - is there a privity relationship between original A and B - contractual with interest in land
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C&S - A v B1, A1 v B, A1 v B1
privity vert required and definition - modern rule and CL covenants |
A1 has purchased everything A had - both side burdened and benefited - must take the whole estate at common law - modern only burden side vert privity
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C&S - A v B1, A1 v B, A1 v B1
privity horz example ? covenants |
grantor - grantee, landlord - tenant, mortgagor - mortgagee
snapshot i time when restriction is created -forever remains the same |
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C&S - A v B1, A1 v B, A1 v B1
notice covenants - constructive notice subdivision - define and MAJ - min |
collateral docs - D does not have restriction recorded in deed but is recorded in deeds of adjacent P - MAJ no Min yes
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ES A v B
P seeks equitable relief or $ |
Contract so runs with land
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ES A v B1, A1 v B, A1 v B1
3 elements P seeks equitable relief |
T&C, intent, notice - no privity requirements
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ES A v B1, A1 v B, A1 v B1
T&C P seeks equitable relief |
same as covenants must increase U&E benefited and decrease U&E onurdened b
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ES A v B1, A1 v B, A1 v B1
Notice to B or B1 P seeks equitable relief |
B must have notice - look for inquiry
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ES A v B1, A1 v B, A1 v B1
Intent P seeks equitable relief |
must intend at creation - same as covenants
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P seeks equitable relief in ES - easier than covenants
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yes no privity
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E&S ad covenants must P prove benefit ran with land on burden side also benefited side
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must show - where burden runs the benefit has to run
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IRS A v B - definition and remedy
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contract runs with land - injunction
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defenses to equitable relief in covenants and ES
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laches, unclean hands, changed circumstances
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changed circumstances in covenants, ES and IRS
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time goes by transition from industrial to residential could defend against enforcement
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IRS A v B1, A1 v B, A1 v B1
2 elements |
Common scheme and Notice to B or B1
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IRS A v B1, A1 v B, A1 v B1
common scheme definition |
developer subdivides into large number of lots - restrictions intentionally or unintentionally left out if D's deed - other owners want to enforce
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IRS A v B1, A1 v B, A1 v B1
Notice |
not in D's deed and D not expressly told so look to inquiry notice - driven through development - more structured more likely
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IRS A v B1, A1 v B, A1 v B1
common scheme builder's docs |
uniform scheme intended by builder from promotional literature or plat map etc
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IRS A v B1, A1 v B, A1 v B1
common scheme - first purchasers |
hard to argue inquiry notice
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IRS A v B1, A1 v B, A1 v B1
common scheme collateral docs maj min |
maj not charged with constructive notice-
min charged with constructive notice |
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equitable defenses to IRS
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laches, unclean hands
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IRS affirmitive or restriction only
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restriction only
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termination of C&S
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all methods same as easements
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in C&S the exam question does not specify remedy
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do both Covenants (first) and ES
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Covenants and ES look for what tort
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nuisance - examiners love to hide tort here
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L&T 4 issue areas
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years, periodic, will, sufferance
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L&T years 3 step approach
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how created, term and termination
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L&T periodic 3 step approach
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how created, term and termination
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L&T will 3 step approach
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how created, term and termination
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L&T sufferance 3 step approach
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how created, term and termination
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L&T basic dispute areas
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rent, condition of premises, effect of transfer,
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L&T types of tenancies 4
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years , periodic, at will and sufferance
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L&T years tenancy definition
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express begin and end dates
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L&T years tenancy SOF
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if over 1 year
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L&T years term tested?
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3 year lease rent payable monthly maj it is a 3 year lease
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L&T years termination
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automatically at end date
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L&T periodic created
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only fixed beginning but no fixed end date - month to month - express or by implication if tenant holds over on years if landlord consents
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L&T periodic created from years
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if LL agrees new period same as old not longer than 1 year because SOF
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L&T periodic term
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whatever agreement states
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L&T periodic terminated
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by notice by length of term
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RAP - executory interests
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subject - if possible executory interest could vest or fail beyond all lives in being
a to B and his heirs so long as L is not served then to C's heirs |
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RAP -options and ROFR
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look to see if you can identify - variation on executory interests - examiners favorite method - in grantor not subject to rule but 3rd p and can be executed beyond all lives in being and 21 years
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RAP - contingent remainder
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unascertained person or conditions precedent that cannot occur before 21 after lives in bein
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RAP - class gifts
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rule of convenience should save from RAP - but look carefully for unborn
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CCE O-> A&B creation
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conveyance to two or more persons who get present interest
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CCE O-> A&B creation - 3 types
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tenancy in common, joint tenancy, tenancy by entirities
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CCE O-> A&B creation - what type is presumed
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tenancy in common
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CCE O-> A&B creation - words joint tenancy
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presumed tenancy in common under maj rule
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CCE O-> A&B tenancy in common
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no rights of survivorship - interest otherwise devises
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CCE O-> A&B tenancy in common transferabsle and or possessable
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undivided interest in whole - fully transferable and possessable
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CCE O-> A&B joint tenancy w rights of survivorship
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joint tenancy - ambiguous argue both ways - takes precedence at death
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CCE O-> A&B joint tenancy w rights of survivorship
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take s precedence over will
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CCE O-> A&B joint tenancy w rights of survivorship CL four unities of title
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created at same time, in same title, same interest equal shares and equal right of possess
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CCE O-> A&B joint tenancy w rights of survivorship modern unities of title
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interest and possession only
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CCE O-> A&B joint tenancy w rights of survivorship joint tenancy severance 5 theories - big testable issue
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severed by will=no, conveyance=yes, K of sale, lease and mortgage
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CCE O-> A&B joint tenancy w rights of survivorship joint tenancy severance will
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will cannot sever
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CCE O-> A&B joint tenancy w rights of survivorship joint tenancy severance by Conveyance
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yes 50 % and convey 25% you are joint tenant for 25% and tenancy in common for the new 25%
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CCE O-> A&B joint tenancy w rights of survivorship joint tenancy contract of sale
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equitable conversion jurisdiction yes K will sever joint tenancy but other jurisdictions no
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CCE O-> A&B joint tenancy w rights of survivorship joint tenancy severance lease
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split but most no some yes
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CCE O-> A&B joint tenancy w rights of survivorship joint tenancy mortgage sever?
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title theory jurisdiction yes resulting in tenancy in common but lien theory jurisdiction - Majority - no
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CCE - tenancy by entireties 2 categories
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H&W only and severance - does not follow CP - title held only by husband and wife
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CCE - tenancy by entireties H&W only (does not follow CP)
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not in CP states only by H& Wife
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CCE - tenancy by entireties severance (does not follow CP)
death |
all to surviving spouse
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CCE - tenancy by entireties severance (does not follow CP)
divorce |
split 50 50 and become tenants in common
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CCE - tenancy by entireties severance does not follow CP)
mutual transfer |
sell or gift or mutual creditor against both and it terminates tenancy
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CCE 3 items to consider
rights and duties of 3 categories |
possession, profits, expenses
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CCE
rights and duties possession |
joint tent or ten in common and ten by entire - equal possession of P, must do adverse possession to dispossess other tenants = ouster or change locks
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CCE
rights and duties profits 3 categories |
own efforts=grocey store you keep profits may owe rent unless you outsed hen you, 2) minerals - right to sever but must account to other CCE get reimbursement for decline n FMV and 3) 3p rents must be shared equally based on ownership
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CCE
rights and duties expenses taxes ad mortgage |
equally any tenant may seek reimbursement for shares owed by other tenants
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CCE
rights and duties expenses - repairs |
no duty to pay for repairs but one who does pay has action for reimbursement if sold or from other profits
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CCE
rights and duties expenses and improvements |
not duty to pay for I but sale price increased by other tenant then co-tenant ho paid get reimbursement for cost of improvement
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3 ways to create tenancy at will
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either can terminate at will 1) stay here as long as either party wishes, invalid lease is tenancy at will, 3) LL may sell to new owner and old T stays on
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L&T term of tenancy at will
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no fixed ending date - key feature
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L&T termination of tenancy at will
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at common law - immediate no advance notice - modern some reas period of notice varies by J
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L&T tenancy at sufferance created
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T holds over after expiration of years tenancy
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L&T sufferance - must L consent to hold over
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L does not consen
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L&T sufferance term
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time it takes LL to evict you
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L&T sufferance terminated how
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judicial means by statute
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L&T basic dispute rent - years tenancy default at CL and Majority
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entire term - if T defaults CL LL can only sue for rent after it was due - Majority under anticipatory breach with duty to mitigate
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L&T basic dispute rent - years tenancy default Majority duty to mitigate?
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yes LL is bound by offset
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L&T basic dispute view to talk about first
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majority
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L&T basic dispute rent - years tenancy default at modern Majority view
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is K unlike CL - normal K rules anticipatory breach - assurances - recipient can sue immediately for entire K performance
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L&T basic dispute rent - periodic tenancy default stated
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what is stated rent - T owes
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L&T basic dispute rent - years tenancy default 2 types
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stated and notice
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L&T basic dispute rent - years tenancy default at CL and Majority notice
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CL notice is effective if given at start of rental period modern maj can give effective notice at anytime to terminate the period
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L&T basic dispute rent - will tenancy default
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same as years or periodic - amount, notice
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L&T basic dispute rent - sufference tenancy default
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reas rental value
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L&T basic dispute rent - sufferance tenancy default T responsiblity
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Quais K to pay reas rental value
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L&T T defenses 7
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failure to deliver possession, actual eviction, constructive eviction, surrender, destruction, implied warranty of hab. K concepts
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L&T T defenses
failure to deliver |
LL fails to deliver MAJ T has no duty to pay rent LL has duty to remove bad T, CL T must evict squatter
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L&T T defenses
actual eviction complete |
LL or LL agent illegally forces T out = complete defense to payment of rent
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L&T T defenses
actual eviction - partial |
LL or LL agent store in garage example - complete defense to rent if caused by LL - not trespasser
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L&T T defenses
actual eviction Govt condems |
power of eminent domain T duty to pay rent is excused
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L&T T defenses
actual eviction - partial govt condemnation |
no defense to rent but portion of condemnation award
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L&T T defenses
constructive eviction |
question of fact - T must P substantial interference with T U&E of P - residential P with no heat - leaky roof in seattle
LL is not responsible for other T conduct unless clause in lease 1) substantial interference 2) caused by LL 3) show substantial by moving out in reas time |
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L&T T defenses
surrender |
LL accepts T decision to abandon prior to expiration of lease - LL acceptance express or by conduct
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L&T T defenses
destruction CL & Modern |
Fire etc destroys P - CL T rented entire structure or portion - entire still have duty to pay but portion no duty - portion excused from rent modern - no duty to pay rent - frustration of purpose except where T caused destruction
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L&T T defenses
surrender CL & MODERn |
LL TAKING POSSESSION OF P then that is sufficient at CL but modern can be mitigation
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L&T T defenses
implied W of Hab |
modern rule applies to residential if defect makes unfit for human habitation then excuses duty to pay rent
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L&T T defenses
K concepts |
strictly modern rule - at CL lease but modern any K concept is colorable
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L&T T defenses
implied W of Hab - commercial |
no
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L&T T defenses
K concepts- ideas |
SOF, impracticable, frustration of purpose, etc
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L&T T defenses
implied W of Hab deduct and repair |
if not fixed then right to repair and deduct
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L&T condition of premises disputes definition
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premises are in need of care or 3rd p has been injured due to defect
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L&T condition of premises disputes
LLmajority |
LL does have duty if W of Human Hab - residential
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L&T condition of premises disputes
LL tort |
frequently comes up - someone is injured -
do not look to duties of care in tort because those are duties of possessor however exceptions for hidden defects etc and common areas, open to public |
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L&T condition of premises disputes
LL CL |
CL LL had no affirmative duty to repair absent express promise to repair
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L&T condition of premises disputes
T tort |
Occupier has obligations based on status of injured person - land occupier duty rules
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L&T condition of premises disputes
T covenant to repair |
clause in lease obligates T
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L&T condition of premises disputes
T waste |
no clause in L is the defect arguably T committed waste
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L&T condition of premises disputes
T covenant to repair - CL |
T had duty
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L&T condition of premises disputes
T covenant to repair modern watse |
T is liable for intentional or negligent waste under affirmitive duty - close windows etc
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L&T - possession disputes
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T fails to pay rent and fails to move out
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L&T - possession disputes CL
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LL entitled o use reas force to remove
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L&T - possession disputes modern
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LL must use judicial process - notice and time to cure
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L&T - possession disputes T defens
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rent defenses, condition defenses and retaliatory eviction
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L&T - possession disputes LL action
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unlawful detainer
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L&T - possession disputes retaliatory eviction
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LL brings action because T made legitimate defenses then T can remain
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L&T - disputes over improvements can T retain improvements CL
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LL retains all improvements except trade fixtures
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L&T - disputes over improvements can T retain improvements modern
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question of intent - did T intend that the improvement would stay or go - very subjective
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L&T - disputes over improvements can T retain improvements modern what to look for
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how was I attached - damage on removal stays - pictures or photos furniture lawn equipment easily removed can be removed
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L&T - disputes over improvements can T retain improvements MBE question
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sales contract P not listed in LSK - no damages to remove and not intended to stay - integrated into P cannot remove
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L&T EoT - effect of transfer
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T assigns or subleases to new leasee
LL sells or conveys P |
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L&T EoT diagram
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LL -> and <- T
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L&T EoT new LL notice rule
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New LL inquiry or actual notice obligates LL takes subject with notice - right to futurerent
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L&T EoT new LL takes subject - duty for covenants - favorite test strategy
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subject to prior LL promises - covenants running with lease - T&C, notice, privity
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L&T EoT future rent when new LL takes subject
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rent payable at next due date even for rent for previous period but due in future
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L&T EoT transfer by T 2 names
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assignment or sublease
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L&T EoT transfer by T
who is liable for rent privity w/LL orig T |
orig T is in privity regardless of assignment or sublease except novation
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L&T EoT transfer by T
who is liable privity w/LL what is assignee vs. sublesee |
takes entire term= assignee
takes portion = sublesee |
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L&T EoT transfer by T
who is liable for BREACH TO LL privity w/LL orig T |
All breaches except under novation
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L&T EoT transfer by T
who is liable for rent privity w/LL assignee |
in privity of estate w/LL
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L&T EoT transfer by T
who is liable for breach w/LL assignee |
yes until A'ee assigns
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L&T EoT transfer by T
who is liable for rent privity w/LL sublessee |
none
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L&T EoT transfer by T
who is liable for breach to LL sublessee |
no
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how can assignee escape duty to pay rent liability under estate privity
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assign to new assignee, cannot argue lack of privity but can argue T&C for other covenants but rent touches,
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dumpor's case LL revive right to refuse to assign
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once LL allows assignment the K any rights under contract restriction is lost for that tenancy
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what is sublessee
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sublesee occupies less than full term of tenancy
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can LL evict non paying sublesee
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yes but cannot get $ for rent
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E&FI 3 types
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fee, life and term
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E&FI fee types - 2
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simple and tail
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E&FI simple fee 2 types
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absolute and defeasible
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E&FI simple fee - defeasible 3 type
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fess simple determinable, fee simple on condition subsequent, fee simple subject to executory limitation
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E&FI fee simple defeasible FS determinable
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express condition in conveyance that may terminate interest - automatically terminates upon the occurance of some designated event - reverts
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E&FI fee simple defeasible FS
on condition subsequent |
terminates upon occurance of event but grantor must step in to retake the property- different language not durational
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E&FI fee simple defeasible FS
subject to executory limitation |
terminates automatically on designated event like determinable and present estate terminates but at occurance of condition title passes to 3rd p - other than grantor or grantor heirs
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E&FI present possessory estate fee simple absolute
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best possible interest in land - last forever - remains with you and heirs so long as no one transfers it away - all rights - whole bundle of sticks
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E&FI present possessory estate fee simple absolute how created
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presumed if conveyance is silents , at CL A to B and hi heirs- modern any ambiguous conveyance is absolute
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how to create a fee simple defeasible determinable
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words of duration - so long as when etc
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simple defeasible determinable terminates what happens
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reverts back to grantor and heirs
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defeasible condition subsequent language
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on condition that, but if, and expressly stated right of re-entry
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what happens if A to B and his heirs without right of re-entry expressly stated
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fee simple absolute - law prefers fee simple absoute
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E&FI fee simple defeasible FS
subject to executory limitation - how to create |
duration or conditional language creates but interest explicitly passes to 3rd p
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defeasible language
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A to B and his heirs so long as Liquor is not served on premises
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E&FI defeasible reverter clause
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and if liquor is ever served , A or successors may enter and terminate B's estate
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E&FI condition subsequent language
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A to B and his H upon condition that Liquor is served on premises
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fee simple subject to executory limitation
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transfers to 3rd party = A to B and his H on condition that liquor is never served , if served then title shall pass to C for life and her heirs
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E&FI fee tail
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only at CL interest to A and to his body heirs - had to pass t heirs of body
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E&FI life estate three types
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grantee, 3rd p, conditional
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E&FI Life estate
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measured by life of grantee or some 3rd p
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E&FI Life estate 3rd p
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measured by life of 3rd P
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E&FI Life estate per autre vive
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measured by life of another
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E&FI Life estate condition
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A to B for life so long as Liquor is not served on premises
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E&FI testable issues for life estates
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rule that you cannot convey more than you own - cannot exceed life - lease would terminate at life estate holder's death
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E&FI Life estate more testable issues
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doctrine of waste - duty to avoid waste
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E&FI future interest created in whom 2 types
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grantor and 3rd p
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E&FI future interest grantor
possibility of reverter |
implied as matter of law = automatic right to re-enter
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E&FI future interest grantor right of entry
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follow fee simple on condition subsequent must be expressly stated will not be implied by law
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&FI future interest grantor - right of entry expressly exercised?
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yes - grantor must step in and take back
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&FI future interest grantor
rights of entry transferable? |
CL no modern fully yes
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E&FI future interest grantor
reversion |
LL has reversion - reversion follows life estate
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E&FI future interest third p
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executory interest and remainder
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E&FI future interest third p executory interest
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interest created in 3rdp that follows a fee - fee interest terminated - follow life
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E&FI future interest third p
remainder 2 types |
vested and contingent -follow life estates or term of years
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E&FI future interest third p
remainder - vested |
created in an ascertained /no condition precedent except natural termination of estate
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E&FI future interest third p
remainder - contingent - unascertained person |
1) created in favor of an unascertained person
A to B for life remainder to C's heirs where C is not dead and has no will |
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E&FI future interest third p
remainder - contingent - condition precedent |
remainder to C if C is alive at B's death
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E&FI future interest third p
remainder - vested - 3 types |
absolute, subject to condition subsequent, subject to open
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E&FI future interest third p
remainder - vested - absolute |
no conditions
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E&FI future interest third p
remainder - vested - subject to condition subsequent |
vested in ascertained person no conditions precedent but there is a condition subsequent - ever serves liquor then remainder terminates - reverts back to grantor
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E&FI future interest third p
remainder - vested - subject to open |
class gift remainder to children
class can |
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E&FI future interest third p
remainder - vested - subject to open class gift rules |
vests when one person vests but can be diminished by new members -
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when does class open
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intervivos class opening - testamentary cls opens at testators death
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when does class close
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rule if convenience when any member or members are entitled to present possession
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intervivos transfer A to B for life remainder to children of C assuming C has one living child at time of transfer
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class opens and vests child has right to possession when B dies
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intervivos transfer A to B for life remainder to children of C assuming C has no children
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class does not open before B dies then no gift when class closes
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E&FI basic rules for waste interests 2 types - who has duty to avoid waste
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doctrine to avoid waste - duty applies not to fee holder for own land - but life tenants have duty to avoid
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E&FI basic rules for waste
duty of life tenant to vested remainder |
yes and future holder can get injunction and $ for value of P taken off P
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E&FI basic rules for waste
duty of life tenant to contngent |
injuction
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E&FI basic rules for waste
duty of life tenant to ho has advantage vested or contingent |
vested because can get $ damages
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restraint on alienation ROA - 2 types
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total and partial
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what duty is owed by life tenants to remainder or reversion holders under doctrine of waste
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reas steps to protect and maintain P, duty to pay mortgage payments at least interest - remainder pays principal -
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what duty is owed by life tenants to remainder or reversion holders under taxes
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life tenant - maintain status quo
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hat duty is owed by life tenants to remainder or reversion holders
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avoid waste, maintain status quo
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ROA - total for fee holder
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grantor cannot impose restraints on fee except defeasible etc - can't sell etc
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ROA - total - all others - life estates - future interests
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reas restrictions allowed
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ROA - partial for fee interests
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options and rights of first refusal are allowed - if G decides to sell then ROFR etc
EXCEPT rule against Perpetuities violations - all other restrictions are generally not allowed |
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ROA - partial ll other
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reas restrictions allowed
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RAP 2 categories
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not w/i rule/ within rule
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RAP not w/i rule 4 categories
these interests do not fall under RAP |
reversions, vested remainders by rule of convenience, fee simple determinables/cond subsequent these are present interests - anything created in grantor - charity to charity - second charity
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RAP definition
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interest not valid unless it will vest or fail within 21 years of any one life in being
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RAP within rule 4 categories
these are subjects to RAP |
executory interests , options and right of first refusal, contingent remainder, class gifts
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