Term
| Characteristics of Tenancy in Common |
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Definition
| Alienable, Transferable, Descendable |
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Term
| Does Tenancy in Common have survivorship interest |
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Definition
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Term
| Characteristics of Joint Tenancy |
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Definition
| can be severed, cannot be devised, strict compliance for formation required |
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Term
| Formation of Joint Tenancy: What are the four unities? |
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Definition
| Posession, Interest, Time, Title |
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Term
| What are the significance of "title" and "Lien" states in re: Joint Tenancy? |
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Definition
Title state: attempt to sever turns JT into Tc.
Lien: does not sever |
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Term
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Definition
| Some states sever, others resume JT after lease is over |
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Term
| Tenancy by Entirity characteristics |
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Definition
for married ppl
must get consent before mortgaging/transfering interest
words 'entirity' needed. if not, JT or TC.
right of survivorship |
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Term
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Definition
All of property posessed, equal access
AP: only if ousted properly
Rent: only if ousted, then ousted person can get porportional rent |
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Term
| How is 3rd party rent hanadled in TC? |
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Definition
| (Rent - expenses) / ownership interst |
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Term
| How are operating expenses handeled in TC? |
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Definition
| porportional share, unless exclusive posession by one party |
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Term
| Reimbursement for improvement and repair in TC |
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Definition
| no right for reimbursement from other common tenants, but can deduct from 3rd party rent, or partition sale |
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Term
| Are partitions an absolute right for TC? |
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Definition
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Term
| What kind of partitions are preferred by courts? |
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Definition
| Partition in kind preferred. However, if impossible, partition by sale |
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Term
| Is there a fiduciary duty owned to other common tenants? |
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Definition
| No, except when trying to take advantage of title. |
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Term
| Exceptions to class gifts in rule of prepetuities |
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Definition
- money gifts
- specific time for each class member for interest in land. (even if unknown or unaccounted chilren, etc)
- charity to charity
- option interest to purchase from simple fee interest frmo landlord of rental prop |
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Term
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Definition
clear period of time. written if over 1 year
-no notice of termination required |
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Term
| Terminating a Tenancy of a term |
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Definition
| -substantial breach by either party can end tenancy before term |
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Term
| Characteristics of Tenancy in Common |
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Definition
| Alienable, Transferable, Descendable |
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Term
| Does Tenancy in Common have survivorship interest |
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Definition
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Term
| Characteristics of Joint Tenancy |
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Definition
| can be severed, cannot be devised, strict compliance for formation required |
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Term
| Formation of Joint Tenancy: What are the four unities? |
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Definition
| Posession, Interest, Time, Title |
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Term
| What are the significance of "title" and "Lien" states in re: Joint Tenancy? |
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Definition
Title state: attempt to sever turns JT into Tc.
Lien: does not sever |
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Term
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Definition
| Some states sever, others resume JT after lease is over |
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Term
| Tenancy by Entirity characteristics |
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Definition
for married ppl
must get consent before mortgaging/transfering interest
words 'entirity' needed. if not, JT or TC.
right of survivorship |
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Term
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Definition
All of property posessed, equal access
AP: only if ousted properly
Rent: only if ousted, then ousted person can get porportional rent |
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Term
| How is 3rd party rent hanadled in TC? |
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Definition
| (Rent - expenses) / ownership interst |
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Term
| How are operating expenses handeled in TC? |
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Definition
| porportional share, unless exclusive posession by one party |
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Term
| Reimbursement for improvement and repair in TC |
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Definition
| no right for reimbursement from other common tenants, but can deduct from 3rd party rent, or partition sale |
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Term
| Are partitions an absolute right for TC? |
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Definition
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Term
| What kind of partitions are preferred by courts? |
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Definition
| Partition in kind preferred. However, if impossible, partition by sale |
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Term
| Is there a fiduciary duty owned to other common tenants? |
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Definition
| No, except when trying to take advantage of title. |
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Term
| Exceptions to class gifts in rule of prepetuities |
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Definition
- money gifts
- specific time for each class member for interest in land. (even if unknown or unaccounted chilren, etc)
- charity to charity
- option interest to purchase from simple fee interest frmo landlord of rental prop |
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Term
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Definition
clear period of time. written if over 1 year
-no notice of termination required |
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Term
| Terminating a Tenancy of a term |
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Definition
| -substantial breach by either party can end tenancy before term |
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Term
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Definition
-full period notice required
-writing, or implied |
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Term
| Tenancy at sufferance: define |
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Definition
| when tenant stays over period |
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Term
| tenancy at sufferance: landlord's rememdies |
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Definition
can hold over tenant for another term, for same period
can charge up to double rent, if notice of increased rent given |
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Term
| Way to end all tenancy, regardless of type |
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Definition
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Term
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Definition
as long as you like until either party doesn't want to
mutuality required |
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Term
| Exceptions to T's duty to pay rent |
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Definition
when premises is destroyed by others
LL partial or complete eviction (constructive, actual)
LL breach of quiet enjoyment, IWH, etc. |
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Term
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Definition
Not to make voluntary, and persmissive waste
pay rent |
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Term
| Constructive Eviction procedures |
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Definition
| CE: 1. entire premises unusable 2. T tells LL 3. T leaves in reasonable time |
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Term
| Implied Warranty of Habitability |
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Definition
-only to residential. not commercial
-basic conditions: heat, water, etc
-can withold partial/full rent. can do repairs and deduct
-must notify, then give time to cure problem
-does not have to be full cons. eviction. partial okay.
-cannot be waived
Common law: tenant had duty to repair. IWH - landlord responsible, esp for health, sanitation, safety |
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Term
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Definition
-Sue tenant only if T actually fails to pay
-duty to mitigate (treat as vacant stock). if not, T not liable
-evict
-holdover, increase rent |
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Term
| minority rule for commercial property and L's rememdies |
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Definition
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Term
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Definition
| Delivery of posession, Quiet Enjoyment, Habitability |
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Term
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Definition
| suitable for purpose of lease, any promises of repair |
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Term
| LL's responsibility for 3rd party actions intruding into tenant's enjoyment |
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Definition
-nuisance-like behavior of other tenants
-common areas
-but not for other external conditions |
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Term
| Retaliatory eviction - burden of proof |
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Definition
| is on L that it was not retaliatory |
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Term
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Definition
Latent Defect: non common area defects not warned to T
Voluntary Repairs: L does shoddy job repairing
Common areas: L responsible for negligence in common areas |
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Term
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Definition
assignment - complete transfer of interest can seek rent from either party
Sublease - Less than entire interest transferred can seek rent only from original tenant |
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Term
| L's authority to deny sublease/assignment |
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Definition
Maj: Commercially viable reason
Min: Any reason
fair housing laws must be followed |
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Term
| LL's ability to transfer interest w/o consent |
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Definition
| yes. unless terms violated |
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Term
| Fair housing/anti discrimination |
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Definition
-race, religion, color, national origin, sex, disability, familial status
-mostly only to multi-residential property
-senior only okay, disability accomodations required (reasonable)
-cannot refuse to let disabled tenant modify house |
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Term
| Adverse Posession elements |
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Definition
| Hostility, Open and Notorious, Statutory Period, Continuos, Exclusive |
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Term
| What are essential terms in land sale contracts |
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Definition
Price, description of land
financing if to be enforced |
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Term
| land sale contracts: Part performance can be.. |
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Definition
evidence of writing
(payment, taking posession, improvements on land) |
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Term
| Implied Duties in Land Sale contracts |
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Definition
-Good faith and fair dealing
-time is not, unless time is of the essense clause
-marketable title
good record title or good title by AP
No Defects: eaesment, debt, serious physical defects (defects muts be material to reasonable buyer) |
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Term
| remedies for implied duty in land sale contract violations |
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Definition
| -can rescind or abate price |
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Term
| Risk of Loss in Land Sale contracts |
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Definition
| equitible title. Buyer takes all the risks |
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Term
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Definition
Deed of trust - mortgage with trustee
Installment land contract - seller financed. no borrower protection, but courts may give protection to protect against inequity |
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Term
| What is Equity of Redemption |
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Definition
| -upon foreclosure, can pay off entire amount to get property back |
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Term
| What is Statutory Redemption |
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Definition
| -gives mortgagor time to buy back at foreclosure price from the foreclosure purchaser |
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Term
| Who is responsible if buyer assumes mortgage - Transfer of mortgages |
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Definition
| both buyer and original mortgagor |
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Term
| What happens to remainder from foreclosure sale |
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Definition
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Term
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Definition
| in most states, if foreclosure price insufficient, borrower still responsible |
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Term
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Definition
Seller financed purchase money mortgage
Purchase money mortgages
First in time |
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Term
| Deed-in-lieu-of-foreclosure |
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Definition
| take property back and cancel mortgage |
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Term
| What matters in delivery of title? |
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Definition
grantor's intent.
-intent must be irrevocable |
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Term
| what happens if title delivered to 3rd party with no written agreement? |
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Definition
| -if to 3rd party, such as escrow, no written agreement - can remove deed until payment received |
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Term
| bona fide purchasors and delivery of title |
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Definition
| -can take title even if not valid deed, or defective deed |
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Term
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Definition
Grantee and Grantor's identity
Grantor's signature
Description enough to identify property |
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Term
| what does State recording statutes does not cover? |
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Definition
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Term
| What is the shelter rule? |
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Definition
| if BFP sells to third party, and 3rd party had notice, still sheltered by BFP |
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Term
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Definition
| Implied Duties, Warranties in a deed extinguishes anything in contract ("merger" clause) |
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Term
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Definition
GEneral Warranty Deed - No defects now or past
Special Warranty Deed - No defects while seller owned
Quitclaim Deed - no warranties. whatever seller has |
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Term
| Implied Warranties in Deed - Present Covenants |
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Definition
Covenant of Siesen - describes land in question
Covenant of Right to Convey - seller has right to convey
Covenant against Encumberences - no undisclosed encumbrences that limits value |
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Term
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Definition
Covenant of quiet enjoyment - promises to defend against future challenges to title
covenant of warranty - defend against future assertions of encroachment
covenant of future assurances - promise to fix future problems |
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Term
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Definition
-Right to convey violations - undo conveyance, or just for the problematic portion
-entitled to price of removal, or price difference with problem |
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Term
| Fixtures - Non freehold property |
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Definition
| - can remove if not damage property |
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Term
| Freehold holders and removal of fixtuers |
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Definition
- intent to pass with title?
-how much damage by removal?
- was it designed for the property? |
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Term
| Tresspasser and removal of fixtures |
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Definition
Tresspasser - CL - cannot remove
-ML: in good faith, can remove if no damage |
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Term
| If a gift is transferred before the will is in effect, what is that called? |
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Definition
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Term
| if beneficiary dies before will effective, what happens and what is that called? |
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Definition
| Lapsing (goes to residual estate), unless will states dead guy's estate takes, or if close relative |
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Term
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Definition
- heir/devisee entitled to have encumberences paid for by estate
- except when right of survivorship
- abolished in many jurisdictions |
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Term
| What kind of Restraints on Alienations are allowed |
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Definition
-only partial ones allowed. must be reasonable under circumstances
-use restrictions: generally upheld, unless makes it inalienable |
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Term
| What factors are looked at to determine if restraints on alienation are reasonable |
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Definition
What is the interest being restrained?
Leasehold or life estate?
Duration - longer less likely
Purpose - if it serves to maximize value, or etc broader purpose |
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Term
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Definition
| easement appurtenant, in gross, dominant, serviant |
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Term
| When are statute of frauds applicable for easements? |
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Definition
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Term
| Types of Implied Easements |
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Definition
PINE - prescription, implied by prior use, necessity, estoppel
P - E-CHONS except Exclusivity
I - Implication. when estate granted or divided, and use is allowed. - apparent, obvious, necessary (reasonably), continued (COAN)
N - landlocked, etc.
E - permission given, reliance, changes mind after detrimentally relied on |
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Term
| What kind of easements are not subject to SOF or recording statutes? |
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Definition
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Term
| Two things that do not apply to negative easements |
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Definition
| adverse posession, implied |
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Term
| Notice requirements for subsequent purchasors |
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Definition
Constructive or actual.
If no notice, PINE applies |
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Term
| Presumptions on Scope of easements |
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Definition
-dependant on intent
-presumptions: againt unforeseen burdens, ambiguoty resolved for grantee
-implied easement: prior use is scope |
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Term
| Subdividing a lot with easement on it |
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Definition
When property subdivided, easement appurtenant can be transferred to all holders of subdivision.
(must be foreseeable) |
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Term
| Can you divide or apportion a non-exclusive easement |
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Definition
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Term
| Ways to terminate an easement |
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Definition
written release (any kind), Oral release (only with reliance), Merger, Severance
Abandonment - need statement of intent + action. just nonuse not enough
Sale to BFP without notice (actual, inquiry) |
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Term
| Are easements transferable? |
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Definition
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Term
| Explain the one stock rule for easements |
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Definition
| overall burden cannot be increased when profits or subdivided easements |
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Term
| Who is responsible for maintanence of easements |
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Definition
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Term
| Can serviant estate owner share the easement with dominant?> |
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Definition
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Term
| Real Covenant requirements |
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Definition
-runs with land (must be expressed- language or extrinsic evidence)
-horizontal and vertical privity
(subj to recording statutes) |
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Term
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Definition
Legal or Injunctive remedies
-Notice (constructive or actual, not inquiry notice)
-Touch and Concern the land: use/value test, but reasonable (anticompetitiev or intrusive on personal rights) |
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Term
| Equitable Servitute requirements |
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Definition
-must be in writing, except - when common scheme or development
-intent to run with land
(Privities not required)
-constructive, actual, and inquiry notice |
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Term
| Implied Reciprocal Servitudes |
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Definition
-Common scheme or development
-reciprocal (burden/benefit each parcel)
-negative restriction
-enough actual inquiry notice - note in deed, marketing, map, oral/written representations |
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Term
| Termination of Equitable Servitudes |
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Definition
Abandoment - in common scheme (impl. recip. serv), dev: substantial number violating
Unclean hands, Laches, Changed Circumstances, Release, Merger |
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Term
| Water Rights - REasonable use |
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Definition
| waterfront users may not interfere unreasonably with other's water use |
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Term
| Water rights - Prior Appropriation |
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Definition
| First party to make beneficial use has right |
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Term
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Definition
| can always build to protect from flood, but cannot use to divert water to smoeone elses land |
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Term
| Lateral Support Rights - Neighbor's buildings contributed to subsidance |
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Definition
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Term
| Lateral Support Rights - Neighbor's buildings did not contribute to subsidance |
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Definition
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Term
| Subjacent Support Rights - Strict Liability |
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Definition
| mining rights after structures in place |
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Term
| Subjacent Support Rights - Negligence Liability |
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Definition
| mining rights before structures in place |
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