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MBE Property

Additional Law Flashcards




What are the 3 types of waste?
1) Affirmative waste: Waste caused by voluntary conduct, which causes a decrease in value.
2)Permissive waste: Waste caused by neglect toward the property, which causes a decrease in value.
3) Ameliorative waste: Special situation where life tenant or other person in possession changes the use of the property and actually increases the value of the property.
How is a joint tenancy created?
1) Grantor must make a clear expression of intent;
2) Must be survivorship language; and
3) The 4 unities of possession, interest, time, and title must be in place.
What 4 unities are required to create a joint tenancy?
1) Possession: Requires every joint tenant have an equal right to possess the whole of the property.
2) Interest: Joint tenants must have an equal share of the same type of interest.
3) Time: Joint tenants must receive their interests at the same time.
4) Title: Joint tenants must receive their interests in the same instrument of title.
• If any of the unities are severed, i.e., destroyed, then the joint tenancy is terminated and turns into a tenancy in common.
Does a mortgage sever a joint tenancy?
Majority: Most jurisdictions follow a lien theory. The mortgage is treated as a lien and does not destroy joint tenancy.
 Minority: A minority of jurisdictions follow a title theory. The mortgage severs title and the tenancy between the joint tenants and creditor is converted into a tenancy in common.
Vested Remainder--An interest that is:
1) Given to an ascertained grantee (i.e., someone who can be identified); and
2) Not subject to a condition precedent (i.e., a condition that must be satisfied in order for the interest to vest)
A tenant has two basic duties:
1)Pay rent, and
2)Avoid waste.
Implied Covenant of Quiet Enjoyment--The tenant can withhold rent when:
1) The landlord takes actions that make the premises wholly or substantially unsuitable for their intended purposes, and
2) The tenant is constructively evicted.
Constructive Eviction
i)Premises were unusable for their intended purposes (i.e., breach of the covenant of quiet enjoyment);
ii)The tenant notifies landlord of the problem;
iii)The landlord does not correct the problem; and
iv)The tenant vacates the premises after a
reasonable amount of time has passed.
Adverse Possession
1.Actual Possession: claimant must physically use the land in the same manner as a reasonable owner would, given its character, location, and nature.
2.Continuous: The claimant’s possession must be as continuous as a reasonable owner’s would be given the character, location, and nature of the land.
3.Exclusive Possession: The claimant’s possession cannot be shared with the owner.
4.Open and Notorious: Possession must be visible and obvious, so that if the owner made a reasonable inspection of the land, he would become aware of the adverse claim.
5.Adverse/Hostile: Possession must be adverse to the owner's interest and cannot be authorized by the owner.
Hostile/Adverse as it pertains to Adverse Possession
Majority Rule: Does not inquire into the adverse possessor’s state of mind
Minority Rule: Inquires into the adverse possessor’s state of mind. Two way split:
1) Good Faith: Some jurisdictions require that the adverse possessor thinks the land is unowned or that she is the rightful owner. This is adverse possession based on a mistake.
2) Bad Faith: Other jurisdictions require that the adverse possessor tries to acquire title to the property by adverse possession. This is adverse possession based on an aggressive trespass.
Contents of a valid deed.
1) Identify the parties (i.e., grantor and grantee) and it must be signed by the grantor.
2) Must include words of transfer.
3) Must include a sufficient description of the property; does not need to be a legal description.
Three kinds of notice.
1) Actual notice - when the subsequent grantee has real, personal knowledge of a prior interest
2) Constructive notice (i.e., record notice) - when prior interest is recorded
3) Inquiry notice - when a reasonable investigation would have disclosed the existence of prior claims.
Six implied covenants in a general warranty deed.
Present Covenants
•Covenant of Seisin: Warrants that the deed describes the land in question
•Covenant of the Right to Convey: Warrants that the grantor (i.e., the seller) has the right to convey the property
•Covenant against Encumbrances: Warrants that there are no undisclosed encumbrances on the property that could limit its value.
Future Covenants
•Covenant of Quiet Enjoyment: Grantor promises to defend against future challenges to the grantee’s title to the property
•Covenant of Warranty: Grantor promises to defend against future assertions of encroachment
•Covenant of Further Assurances: Grantor promises to fix future title problems.
Implied Easement by Necessity
1)Dominant and servient estates were owned by one person; and
2)Necessity arose when the estates were severed into two separate estates, and at that severance, one of the properties became virtually useless without an easement.
3)Ends when it is no longer necessary.
Implied Easement by Implication
1) A large estate owned by one owner
2) Before division, the owner of the large tract uses the land as if there’s an easement on it--uses one part to benefit the rest or another part of the property.
3) Use must be continuous and apparent at the time of severance.
4) Use must be reasonably necessary to the dominant estate’s use and enjoyment
Implied Easement by Prescription
o Continuous for statutory period
o Open and notorious, and
o Hostile
Real Covenant
1)Must be in writing
2)Intent to create a real covenant
3)Touch and concern the land
4)Notice to successors (actual or constructive)
5)Privity (horizontal and vertical)
Equitable Servitude
1) It must be in writing. The exception is an implied reciprocal servitude;
2) Must have been intent by the original parties for servitude to run with the land;
3) Must touch and concern the land; and
4) Successor must have notice (actual, record, or inquiry)
Implied Reciprocal Servitude
o Must be an intent to create a covenant (i.e., promise) on all plots in the subdivision;
o Must be reciprocal (i.e., benefits and burdens each and every parcel);
o Must be negative rather than positive; i.e., it must be a restriction on owner’s use;
o Successor must be on notice of the restriction (at least inquiry notice); and
o Must be a common plan or scheme.
Private Nuisance
--A substantial and unreasonable interference with another individual’s use or enjoyment of his property. The interference may be intentional, negligent, reckless, or the result of abnormally dangerous conduct.
--Substantial: One that would be offensive, inconvenient, or annoying to an average person in the community
--Unreasonable: The injury outweighs the usefulness of the defendant’s actions.
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