Compare:

Constructive eviction, and

Remedies for implied warranty of habitability

Constructive eviction

SiNG ("singing mad tenant")

Substantial interference with quiet enjoyment

Notice to landlord, who refuses

Goodbye: move out within Rz time

If Landlord violates Implied Warranty of Habitability

Tenant can MRRR:

Move out and terminate lease

Repair and take out of rent

Reduce rent, or withhold until court sets fair rental value

Remain in possession, seek money damages

What is the Rule in Shelley's Case?

What is the modern rule?

"To A for life, then, on A's death, to A's heirs."

Rule in Shelley's Case:

This is an FSA.

Modern rule:

A has LE

A's heirs have contingent remainder.

O has revision

(encourages alienability)

• All can possess (cannot charge each other rent)
  • if wrongful ouster, owes rental value of others' share
• All tenants proportionately share:
  • rent benefits
  • carrying costs (mortgages, taxes)
  • repairs (Rz + necessary)
• Profit + Loss from activities are borne by individual (e.g. one runs a farm)
• Improvements? No right to contribution, and she benefits/loses from change in value
• Bring action for waste during life of co-tenancy

When ALL future interest holders are known and give consent

(e.g. b/c of sentimental value)

NONE (caveat lessee), EXCEPT for...

CLAPS

Common areas

Latent defects: L must warn of defects L reasonably should know about

Assumption of repairs

Public use: L should know from nature of defect and length of lease that T will not repair

Short-term lease of furnished dwelling

Express writing!

LASS:

Light

Air

Support

Streamwater (from an artificial flow)

Scenic view (California)

Easement appurtenant:

w/ dominant tenement: PASSES

w/ servient tenement: If there is no notice (AIR)

Easement in gross:

Transferable ONLY if commercial purpose

Requirements for:

• Creating or terminating an affirmative easement
• Adverse possession

COAH

Continuous Use: can tack (if privity e.g. not ouster)

Open and Notorious: not concealed, sort of possession a usual owner would make [notice]

Actual Use

Hostile Use: w/o permission

Adverse possession - must also be Exclusive use

Easement Implied from Existing Use:

• Apparent
• (at time of division) parties expected it to survive b/c reasonably necessary to dominant tenement's use and enjoyment

Easement by Necessity:

Division --> no other way out for parcel

(servient owner can choose path)

END CRAMP

Estoppel - Rz reliance

Necessity - necessity ends, unless formed w/ express grant!

Destruction

Condemnation

Release - must be written

Abandonment - physical action showing intent (more than mere non-use)

Merger - title to easement + servient land --> same person

Prescription - COAH

What is the (old) Rule of Destructibility of Contingent Remainders?

What is the modern rule?

A contingent remainder that was STILL contingent at the time the preceding estate ended.

"To A for life, and if B has reached 21, to B."

Old: A dies when B is 19. O takes an FSA.

Modern: Reversion to O, has fee simple subject to springing executory interest in B

Benefit: WITV Burden: WITHVN

Writing

Intent to Run

Touch and concern the land (re: rights as landowners)

Horizontal Privity: Original A+B in succession of estate (grantor lessor mortgagor)

Vertical Privity: non-hostile transfers (not A.P.)

Notice (AIR)

Landlord promises to keep apartment in good repair.

Tenant's friend comes over and stair collapses.

Who is liable?

Tenant ONLY.

(Tort liability/duty to 3rd parties -

It doesn't matter what Landlord promised)

Requirements for equitable servitudes?

WITNes

Writing (except for implied kind - common design)

Intent

Touch and concern

Notice

(privity not required!)

What is the Doctrine of Part Performance?

(property question)

Exception to writing requirement for a land contract

2 of the following 3 must be true:

Buyer takes possession

Buyer pays all or part of purchase price

Buyer makes substantial improvements

• Marketable title at closing
  • free from doubt of possible litigation:
    • adverse possession (even if just part)
    • encumbrances
    • zoning violations
    • [? a seller has vested remainder subject to open ("transferable is not always marketable")]
• No lies or omissions a/b material facts (disclaimers ("as is") are invalid!)
• No implied warranties of fitness or habititability (caveat emptor)

• The Four Unities (T-TIP)
  • Time
  • Title
  • Identical interests in the land
  • rights to Possess the whole
• Clear express intent: "with right to survivorship"

GENERAL WARRANTY DEED

• Present Covenants
  • Covenant of seisin ("I own it")
  • Covenant of right to convey ("I can give this")
  • Covenant against encumbrances
• Future Covenants
  • Covenant for quiet enjoyment ("There will be no 3rd party claim")
  • Covenant of warranty ("I will defend you")
  • Covenant for further assurances ("I will do what's needed to get you perfect title

SPECIAL WARRANTY DEED

• I didn't convey this to anyone else
• I have not started any encumbrances on this

QUITCLAIM DEED: Good luck!

• Lawfully Executed
• Delivered:
  • Grantor shows present intent to be bound (to have present operative effect)
  • If delivery to 3rd party:
  •  
    • No conditions... YES (future interest)
  •  
    • w/ conditions and transaction
  •  
    •  
      • *majority Jx: can revoke if no contract
  •  
    •  
      • minority Jx: conveyed!
  •  
    • w/ conditions + donative: YES if intent shown

Intent to benefit landlord/realty?

OBJECTIVE TEST

• Express agreement?
• Annexor's relationship to property (e.g. short stay, potter setting up stuff for own business)
• Nature of chattel (e.g. bench in same style as pretty organ installed in the wall)
• Substantial damage if removed
• Adaptation to (uniqueness of) realty

Divided Ownership Cases (e.g. renter):

if no damage if removed, NO intention

must remove before end of tenancy

Even if one can take it back, may need to pay to repair damage caused by removal

Landlord's remedies when tenant doesn't pay rent and:

1. Tenant is in possession?

2. Tenant left? (abandonment)

• 1. NO self help!
  • Evict via courts, OR
  • Continue relationship and sue for rent
• 2. SIR
  • Surrender: treat abandonment as offer to surrender, accept
  • Ignore abandonment + hold T responsible [disfavored]
  • Re-let on T's behalf, hold T liable for the deficiency

Possession at beginning of lease (English Rule)

Implied covenant of quiet enjoyment

(actual + constructive eviction, control common areas,

no nuisances from other Ts)

Implied warranty of habitability

(fit for basic human habitation)

When does a class close?

(property transferees)

When ANY member can demand possession.

(Rule of Convenience)

"To A for life, then to B's children."

A is Alive. B has 2 children C and D. A dies. B has 3rd child E.

Who wins?

C and D. Not E (though this is subject to Womb Rule)

T overstays lease, L allows holdover.

What result if previous release:

1. was residential and said "5 years, paid annually"?

2. said "6 months, paid bimonthly"?

3. was for a business and said "3 years, paid monthly"?

4. was verbal lease for 5 years, $12,000 per year, payable $1,000 every month?

1. Month-to-month (residential) (or week-to-week)

2. Every 2 months (lease term less than one year)

3. Year-to-year (lease term more than one year)

4. Year-to-year (violates SOF) (if "reserves ANNUAL rent", then payable monthly) [majority Jx]

PURGE

Prior Use: continue previous exploitation (Open Mines Doctrine: only already-open mines)

Repairs: Rz repairs + maintenance

Grant: expressed right

Exploitation: land's sole suitable use

"To A for life, then to O's heirs."

Valid?

No--cannot create a future interest in one's heirs.

Interest is void.

[Doctrine of Worthier Title]

Result:

A has LE.

O has reversion.

Depends on the Jx:

Lien theory (majority): Title w/ mortgagor, NO severance

Title theory (minority): Title w/ mortgagee, YES severance

"conveyance is first recorded."

- Race-Notice Statute (winner is first BFP to record)

if it doesn't say "first" recorded...

- Notice Statute (winner is last BFP)

Common law: if grantor conveyed the same property twice, the grantee first in time wins

A BFP records but is not w/in chain of title.

Another BFP buys the same property from actual owner.

Result?

1st BFP's deed was a "wild deed." His recording is a nullity.

2nd BFP wins.

Someone who receives land from a BFP receives whatever protection the transferor-BFP had (even if transferee knew about imperfect title)

(This protects the interests of BFPs)

This is an "equitable mortgage." O can show parol evidence to show real intent.

However, if creditor sells deed to a BFP, then BFP owns the land! O must sue creditor for fraud damages.

When a creditor-mortgagee validly assigns (note) to another, the transferee is a "holder in due course."

HIDC is free from any personal defenses (no consideration, fraud-in-inducement, unconscionability, waiver, estoppel) that could've been raised against original creditor.

However, HIDC is still vulnerable to "real" defenses MAD FIiFI! (mad debtor!):

Material Alteration

Duress

Fraud

Incapacity

Illegality

inFancy

Insolvency

Buyer "assumed the mortgage"

Buyer takes "subject to the mortgage"

Difference?

Buyer who "assumes" the mortgage is primarily liable and O is secondarily liable.

Buyer who takes "subject to" the mortgage is not liable! O is liable. Still, the mortgage sticks with the land! If O defaults, then land is foreclosed!

1. Attorneys fees and foreclosure expenses

2. Any accrued interest on lien (foreclosing party)

3. Then to principal (foreclosing party)

4. JOINED junior liens are paid in order of priority

5. Debtor

Re: order of priority:

"superpriority" given to purchase money mortgagee (loan used by debtor to buy parcel in the 1st place)

senior interests and unjoined lienholders are unaffected

unsatisfied junior lienholders can bring a deficiency action against debtor (good luck!)

No! Not personally liable.

HOWEVER, they can still foreclose if they're not paid off too!

Therefore, this usually affects the price at the foreclosure sale: it is the value MINUS whatever $ is needed to discharge the mortgage.

Equitable Redemption: pay off principal and interest before the foreclosure sale.

Sometimes there's also Statutory Redemption: can redeem until some fixed period after sale and still possess in the meantime!

LATERAL SUPPORT (neighboring landowner causes cave-in)

Damage to land? Strict liability.

Damage to buildings?

Strict liability ONLY if owner can show it would've caved-in in its natural state. Otherwise D is liable only if negligent.

SUBJACENT SUPPORT (underground occupant)

Damage to surface and buildings that existed at time interest was created? Strict liability.

Subsequent buildings? Negligence.

How do we balance rights in regard to watercourses?

Can ownership boundaries change over time?

Watercourses = streams, rivers, lakes

2 doctrines...

Riparian Doctrine:

those owning land bordering watercourse are "riparians."

They have right to Rz use of water. Must not unRzably interfere w/ others' use

Prior Appropriation Doctrine:

"First in time, first in right"

Rights determined by "priority of beneficial use" (any productive/beneficial use, including agriculture)

If slow, imperceptible change in course of river, this shifts owners' boundaries, too

Rules governing:

Groundwater?

Surface waters?

Groundwater = beneath the surface, not confined to a known channel

Reasonable Use Theory (majority Jx):

surface owner can Rz use groundwater, so long as not wasteful

(no liability to others so long as not malice)

============

Surface Waters (rain, springs, melting snow, has not yet reached a natural watercourse or basin)

Common Enemy Rule!

Landowner may combat flow of surface water

(most Jx: and not unnecessarily harm others' land)

explicit taking = condemnation

implicit taking = any action that works an economic wipeout of one's investment

This is a trespass. Can do an ejectment action.

Can get:

annexation

Rz rental value of property over course of trespass

Government zoning ordinances...

A. How does one get an exception?

B. What about preexisting land use that is now banned?

C. Can govt make demands on landowners seeking permission to build?

A. One can ask for a variance. Must show:

1. Undue hardship (e.g. child has asthma)

2. Will not decrease neighboring property values

B. "Nonconforming uses" cannot be eliminated all at once, unless just compensation is paid

C. Exactions are unXnal, UNLESS:

1. Legitimate interest.

2. Adverse impact of proposed development is Rzably related, both in nature and scope, to the loss caused to owner

"To A for life, then to B's heirs"

"To A for life, then to those children of B who survive A"

A has life estate

B has contingent remainder (heirs are not ascertained persons)

Fee simple absolute!

No durational language

"To A for life, then, if B graduates from college, to B"

A. What rights do they have now?

B. What rights do they have, if A dies and B still hasn't graduated from college?

A.

A has life estate

B has contingent remainder

O has reversion

B.

O has fee simple subject to a springing executory interest

B has springing executory interest

"To A for life, remainder to B, provided, however, that if B dies under the age of 25, to C"

A dies, and B isn't 25 yet

"To A for life, and if B has reached the age of 25, to B"

A. What rights do they have now?

B. What if A dies, and B isn't 25 yet?

A.

B has contingent remainder

O has reversion

B.

O has fee simple subject to springing executory interest

If B reaches 25, B divests O

"To A for life, then to B's children"

A is alive.

B has two children C and D.

A dies.

C and D can demand possession so class closes.

3rd child E gets nothing.

"To A, if and when he marries."

A is unmarried.

Rule Against Perpetuities knocks out last interest.

A has a Fee Simple Determinable.

O has a Possibility of Reverter.

Invalid because of Rule Against Perpetuities!

(right of first refusal is subjected to RAP)

Nephew has a life estate subject to an executory interest!

Nephew's children have contingent remainders.

Niece has a shifting executory interest.

L leases Blackacre to T1.

T1 assigns to T2.

T2 assigns to T3.

T3 engages in flagrant abuse to the premises.

Whom can L sue?

L can sue:

T3 (privity of estate)

T1 (privity of contract, is secondarily liable)

NOT T2 (neither privity, unless expressly assumed all promises in original lease)

1950: O owns Blackacre. He is thinking about selling to X, but for now decides against it. X, who doesn't own Blackacre, sells it anyway to A. A records.

1960: O finally sells Blackacre to X. X records. Who owns?

A owns b/c of estoppel by deed. Double-dealer who falsely conveyed deed 3rd party may not assert ownership against 3rd party if later double-dealer actually buys the land.

PART TWO:

In 1970, X, a double dealer, sells Blackacre to B. B records. Who owns?

B owns. This is true in Notice Jx AND Race-Notice Jx b/c A's recording in 1950 was a nullity. (No chain of title!)