Term
| Adverse Possession Elements |
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Definition
1. Actual
2. Open and notorious
3. Hostile
4. Exclusive
5. Continuous
(6. Some courts require good faith) |
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Term
| What is a disseisor? (re: adverse possession) |
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Definition
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Term
| What is a disseisee? (re: adverse possession) |
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Definition
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Term
| Does the time requirement for adverse possession have to be the most recent time? (i.e. if the statute requires 10 years, does this have to be the most recent 10 years?) |
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Definition
| No, the time period can be met at any point during the possession (it does not have to be the most recent 10 years) |
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Term
| When does the clock stop running in an adverse possession suit? |
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Definition
| When the lawsuit is filed. |
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Term
| What is tacking? (re: adverse possession) |
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Definition
| The ability to combine times of multiple possessors in sequence (C is the original owner -> A possesses for 8 years then leaves -> B possesses for 2 years) |
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Term
| When is tacking allowed? (re: adverse possession; C is original owner -> A possesses for 8 years then leaves -> B possesses for 2 years) |
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Definition
| When there is a nexus (some sort of purported transfer) between A & B. A's interest that is "transferred" is an inchoate interest (A's 8 years of adverse possession) |
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Term
|
Definition
| When there are multiple owners (i.e. C is the original owner to sells property to D, while A is adversely possessing the land) |
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Term
| If C is the original owner of property and then sells to D while A is adversely possessing the land, does A's adverse possession clock start over? |
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Definition
| No. D takes the title as C has it (it is tainted with the years A had been adversely possessing it) |
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Term
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Definition
| When property is sold by the government when the taxes on a piece of property have not been paid. Someone who buys a tax deed can begin a judicial process to obtain the tax money from the original owner. If the original owner does not pay, then the title transfers to the buyer. |
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Term
| What is 'open'? (re: adverse possession) |
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Definition
| Visible and apparent; this element is used to put the owner on notice. Just because possession is open does not mean it is notorious. |
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Term
| What is 'continuous'? (re: adverse possession) |
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Definition
| The possession must be continuous for the required statutory period (without interruption) |
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Term
| What is 'exclusive'? (re: adverse possession) |
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Definition
| A person can jointly adversely possess land, but there cannot be two competing groups or people. There must be one owner (or owners working in conjunction) that are using the land as true owners would. |
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Term
| What is 'hostile'? (re: adverse possession) |
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Definition
| The adverse possession claim is in contrast to the true owner's interest. Permissive use defeats hostility. |
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Term
| What is 'notorious'? (re: adverse possession) |
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Definition
| The possession is distinct. It must be more than just visible; the possessor must actively be ascertaining the claim of possession. |
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Term
| What is 'actual'? (re: adverse possession) |
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Definition
| Physical presence on the property (in most cases, this means full-time) |
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Term
| What is an action for quiet title? |
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Definition
| When a person sues another with legal title of a piece of property in order to gain legal title of that land |
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Term
|
Definition
| Exists when a written instrument purports to pass title to a claimant, but it is ineffective because of a defect in the means of conveyance or because the grantor did not actually own the land he sought to convey |
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Term
| What is privity (generally)? |
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Definition
| A connection or relationship between two parties, each having a legally recognized interest in the same subject matter |
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Term
| What was the holding in Monroe v. Rawlings re: adverse possession? |
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Definition
| Even though the adverse possessors only used the property six times a year, this was held to be "continuous" because that was how an owner would use the land |
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Term
| True or False: The land an adverse possessor gets title to is not just the land they possess, but the entire acreage of the property in whole. |
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Definition
| False. Adverse possessors only get title to the land which they are using. |
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Term
| What was the holding in Chaplin v. Sanders re: adverse possession? |
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Definition
1. Improvements to the land are generally considered to be "actual" possession
2. Hostility requires the claimant to treat the land as his own against the world
3. Actual notice of the adverse possessor to the original owner will qualify as "open and notorious" (although this is NOT required for "open and notorious") |
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Term
| What is a cotenant? (re: adverse possession) |
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Definition
| When either person has the right to possess the entire parcel of land but only owns a fractional interest. |
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Term
| What is an ouster and when is this required? |
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Definition
| An ouster is when a cotenant uses words or actions to assert a claim of separate ownership. Ouster is required when a cotenant tries to adversely possess from the other cotenant. |
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Term
| What does "ad coelum et ad infernos" refer to? |
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Definition
| "To heaven and the depths"; this is a traditional rule that states whoever owns the surface of the land owns the space above and below it |
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Term
| What are fugitive minerals? |
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Definition
| Minerals that move beneath the surface |
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Term
| What are the two ownership theories for fugitive minerals? |
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Definition
1. Non-ownership - no one owns fugitive minerals until they are captured
2. Ownership-in-place - Each property owner (A & B) owns the fugitive minerals beneath their land, but if A extracts the mineral first he divests B of ownership |
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Term
| What is "Riperian" water or "Littoral" water? |
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Definition
| Streams, rivers, lakes (established waterways) |
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Term
| What are the 2 common law doctrines of Riperian water? |
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Definition
1. Natural flow - right to not have the water decreased in either quality or quantity
2. Reasonable use - balancing test between the use one owner makes of the water and the use of another owner |
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Term
| What is the common law Prior Appropriation doctrine for Riperian water? |
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Definition
An entity that makes a prior use of water has the right to continue doing so; this is not attached to ownership of land
A later appropriator can take away the right to the water if he is making better use of the water than the prior appropriator, but then he must compensate the prior appropriator |
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Term
| What is diffuse surface water? |
|
Definition
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Term
| What are the 2 doctrines for diffuse surface water? |
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Definition
1. Common enemy - diffuse surface water is the common enemy of everyone, so everyone has a right to fight this enemy in his own way
2. Civil law rule - you cannot affect the flow of surface water at all; if you do affect the flow and damage results, you are liable for damage |
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Term
| What doctrines are used for underground water? |
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Definition
| Same as Riperian (natural flow, reasonable use, prior appropriation) |
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Term
| What is the Law of Lateral Support (common law)? |
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Definition
| An owner or possesor of land owes an absolute duty NOT to remove lateral support from a contiguous neighbor's land in its natural state |
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Term
| What is the Law of Subjacent Support? |
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Definition
An owner or possessor of land owes a duty NOT to remove support from below the surface of the land such that settling occurs, causing damage.
Similar to the Law of Lateral Support, but the "natural state" element is not necessary. |
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Term
| What are the two ways to transfer property rights? |
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Definition
1. Inter vivos ("between living")
2. Mortis causa ("by cause of death") |
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Term
| What are the 3 types of inter vivos transfer or property rights? |
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Definition
1. Gift
2. Sale
3. Involuntary |
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Term
| What are the common law requirements for a gift transfer of property rights? |
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Definition
1. intent
2. delivery
3. acceptance |
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Term
| What are the requirements for a transfer of land? |
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Definition
1. Deed (a document for a specific transfer)
2. Delivery of the deed |
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Term
| When does a deed become valid? |
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Definition
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Term
| What are the types of mortis causa trasnfer of property rights? |
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Definition
1. Gift
2. Intestate
3. Testamentary |
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Term
| What are the requirements for a mortis causa gift transfer of property rights? |
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Definition
1. intent
2. delivery
3. acceptance
4. anticipation of impending death |
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Term
| What happens if the donor of a mortis causa gift doesn't die? |
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Definition
| The gift is automatically revoked |
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Term
| What is an intestate transfer? |
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Definition
| A transfer that goes through intestacy (without a will) |
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Term
| What is the legal meaning of heirs? |
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Definition
Individuals who take through intestacy, which is defined by statute.
A living person does not have any heirs because heirs are not know until the person dies |
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Term
| What is the per capita rule of intestacy? |
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Definition
| DP has 3 children (2 living) and each have 2 children. 2 children and 2 grandchildren get equal shares (1/4 each) |
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Term
| What is the per stirpes rule of intestacy? |
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Definition
| DP has 3 children (2 living) and each have 2 grandchildren. 2 children get 1/3 share and the 2 grandchildren split the remaining third |
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Term
| What is a testamentary transfer? |
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Definition
| A transfer through a will. |
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Term
|
Definition
A person who received property through a will upon the death of another person
A living person does not have any devisees; he has prospective devisess because devisees revocable up until the moment of death |
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Term
| What happens if a surviving spouse is left out of the will or inadequately provided for by the will? |
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Definition
| Most statutes will give a forced or elective share to the surviving spouse |
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Term
| When is a will effective? |
|
Definition
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Term
| What are the ways a will can be revoked? |
|
Definition
1. Physical destruction
2. Revocation action
3. Revocation by subsequent will (without the express intent to revoke earlier will, the later will overrides only inconsistent provisions of earlier one)
4. Revocation by law (marriage, divorce, birth of children, etc.) |
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Term
|
Definition
| Creating a new tier of tenants |
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Term
|
Definition
An interest in land which:
(a) is or may become possessory, AND
(b) has ownership measured in terms of duration |
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Term
| What is the Law of Waste? |
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Definition
| Holders of future interests can prevent life estate holders from decreasing the value of the property (because life estates are relatively short in comparison to vested remainders, which last for infinity) |
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Term
|
Definition
| When the present possessory holder takes actions to damage the property |
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Term
| What is ameliorative waste? |
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Definition
| A subtype of voluntary waste; a voluntary act taken by the life tenant that actually increases the economic value of the property |
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Term
| What is permissive waste? |
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Definition
| When the present possessory holder's inaction leads to damage to the property (improper upkeep) |
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Term
| What are the types of concurrent estates? |
|
Definition
1. Joint tenancy
2. Tenancy by the entirety
3. Tenancy in common |
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Term
| What language creates a joint tenancy? |
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Definition
"To A and B, not as tenants in common, but as joint tenants with the right of survivorship."
Look for:
(1) specification that it is not tenants in common, AND
(2) right of survivorship |
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Term
| What is right of survivorship? |
|
Definition
| If A and B are tenants, and A dies, then B gets the property (as opposed to A's property going to A's devisees, EVEN IF A HAS A WILL) |
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Term
| What are the four unities required for a joint tenancy? |
|
Definition
1. Unity of time
2. Unity of title
3. Unity of interest
4. Unity of possession |
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Term
| What happens if one of the four unities is missing? |
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Definition
| Then the concurrent estate is a tenancy in common, and not a joint tenancy. |
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Term
| What is the unity of time? |
|
Definition
| The joint tenancy must be gained at the same time for all parties |
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Term
|
Definition
| The interest in each of the joint tenants must be created from the same instrument (deed or will) |
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Term
| What is unity of interest? |
|
Definition
| Each joint tenant must have the same amount of interst |
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Term
| What is unity of possession? |
|
Definition
| Each of the joint tenants must have equal rights to possession of the property (each has a right to posses the whole) |
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Term
| How does one sever a joint tenancy? |
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Definition
| With an inter vivos transfer; this destroys unity of time and title (the transferee takes a tenant in common with no right of survivorship; the other joint tenants remain joint tenants with respect to each other) |
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Term
| O to A, B, and C as joint tenants. A deeds his 1/3 interest away to X. |
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Definition
| X takes as a tenant in common. B and C have no right of survivorship with respect to X, and X has no right of survivorship with respect to B and C. B and C remain joint tenants with respect to each other with right of survivorship. |
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Term
| What is the possessory right of a joint tenant? |
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Definition
| Each joint tenant has the right to possess the whole |
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Term
| What is the partition of a joint tenancy? |
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Definition
| The division of undivided interests |
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Term
| What are the types of joint tenancy partition? |
|
Definition
1. Partition in Kind
2. Partition by Sale/Forced Sale |
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Term
| What is Partition in Kind (re: joint tenancy)? |
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Definition
| Literally dividing the land up physically into portions that the cotenants will then own by themselves; this is favored over partition by sale |
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Term
| What is partition by sale/forced sale (re: joint tenancy)? |
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Definition
| When there's no way to divide the property, a court can force a sale of the property, then divide the revenues. |
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Term
| What is Owlety (re: joint tenancy)? |
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Definition
| A subcategory of partition by sale where the party who wants to keep ownership of the land is forced to buy out the other cotenant |
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Term
| What language is used to create tenancy by the entirety? |
|
Definition
1. "To H and W, husband and wife"
2. "To H and W, husband and wife, and the survivor"
3. "To H and W, husband and wife, as tenants by the entirety" |
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Term
| When does a tenancy by the entirety exist? |
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Definition
| Can only exist between spouses, and no longer continues once the two are no longer spouses |
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Term
| What happens if someone attempts to create a tenancy by the entirety between two non-spouses? |
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Definition
| This will create the preferred concurrent estate (usually tenancy in common) |
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Term
| What are the characteristics of a tenancy by the entirety? |
|
Definition
1. Right of survivorship
2. Four unities required
3. NOT severable
4. Cannot be transferred or encumbered by one person
5. Divorce converts it to the preferred concurrent estate |
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Term
| What language creates a tenancy in common? |
|
Definition
1. "To A and B"
2. "To A and B as tenants in common" |
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Term
| What are the characteristics of a tenancy in common? |
|
Definition
1. No right of survivorship
2. Fully transferrable
3. Only unity required is possession
4. A tenant in common owns an undivided fractional part of the whole
5. Generally is the default tenancy |
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Term
| If one joint tenant attempts to sever the tenancy, is notice to or consent from the other joint tenant required? |
|
Definition
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Term
| Can a cotenant encumber without consent form the other cotenants? |
|
Definition
| Yes, and even without notice in most states |
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Term
| What does a mortgage convey in a title theory state? |
|
Definition
| Title; this likely destroys the unity of title because the title has been transferred |
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Term
| What does a mortgage convey in a lien theory state? |
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Definition
| A lien; this does not destroy the unity of title because the title does not transfer between the mortgagor and the mortgagee |
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Term
| Does a possessory tenant have to pay rent to a nonpossessory tenant? |
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Definition
| No, because the possessory tenant is only exercising his right to possess the whole |
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Term
| What happens with respect to a nonpossessory tenant if a possessory tenant lays out money for the property to improve upon it or pay taxes? |
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Definition
| The possessory cotenant can ask for half the costs from the nonpossessory cotenant. BUT the nonpossessory cotenant can then get credit for "rent" for the occupancy of the possessory tenant |
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Term
| Is a cotenant who incurs expenses for the necessary preservation of property entitled to reimbursement from the other cotenants? |
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Definition
| Yes. But when a cotenant goes beyond preservation and develops the property in some way, the other non-joining cotenants have no obligation to pay for the improvements |
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Term
| What is the difference between tenants and licensees with respect to duty of care? |
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Definition
| Landowners owe tenants a duty of care; landowners owe no duty of care toward licensees |
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Term
| What is the distinction between a tenancy and a license? |
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Definition
| A tenant who has a lease is entitled to possession and exclusive occupancy of the premises; A licensee merely has a contract for use without a transfer in an interest of land |
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Term
| What are some factors pointing to a license relationship in a lodging context? |
|
Definition
Whether the owner:
- retained the keys
- had free access to the room
- had a right to enter for repairs
- provided meals, towels, etc. |
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Term
| What are the situations in which the distinction between a tenant and a licensee should be made? |
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Definition
1. Concessionaries
2. Guests and lodgers
3. Signs and billboards |
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Term
| Factors to consider when determining if a concessionary is a tenant or licensee. |
|
Definition
- Whether they occupy a fixed space or can be moved around at the will of the establishment
- Does the larger business have little or much control over their activities?
- Is the space they occupy clearly or indistinctly set off from the rest of the establishment?
- Is the money given called "rent" or something else? |
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Term
| What are the two relationships involving possession that are not leases? |
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Definition
1. Mortgagee in possession (mortgagee is the person to whom the mortgage is granted; the person who gives the money in return for the mortgage)
2. Contract purchaser in possession |
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Term
| What are the several tenancies? (Any leasehold estate will be one of these 4 types) |
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Definition
1. Term for Years (aka Fixed Tenancy)
2. Periodic Tenancy
3. Tenancy at Will
4. Tenancy at Sufferance |
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Term
|
Definition
| A tenancy for a "fixed term" with starting and ending points; does not have to be for a year, could just be for one day |
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Term
| How is a Term of Years created? |
|
Definition
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|
Term
| How is a Term of Years terminated? |
|
Definition
1. Expiration of the fixed term
2. Contingency (ability for landlord to terminate early upon the happening of some fact)
3. Surrender (by the tenant)
4. Release (by the landlord)
5. Condemnation
6. Expiration of landlord's estate |
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Term
| What is the duration of a Periodic Tenancy? |
|
Definition
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Term
| How is a Periodic Tenancy created? |
|
Definition
1. By agreement
2. By the act of periodic payment coupled with either indefinite agreement or void lease
3. By consent of landlord to holdover tenant |
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Term
| How is a Periodic Tenancy terminated? |
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Definition
| By notice within the time period required (either by landlord or the tenant) |
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Term
| What is the duration of a Tenancy at Will? |
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Definition
| Only so long as both parties refrain from taking actions inconsistent with its continuation |
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Term
| How is a Tenancy at Will created? |
|
Definition
1. By agreement
2. By taking possession with consent only
3. By entry under void lease prior to any periodic payments |
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Term
| How is a Tenancy at Will terminated? |
|
Definition
1. By either party without notice
2. Tenant's attempt to assign
3. Conveyance of landlord
4. Death of either party |
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Term
| What is the duration of Tenancy at Sufferance? |
|
Definition
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Term
| How is a Tenancy at Sufferance created? |
|
Definition
| By entering rightfully and retaining wrongfully (i.e. a holdover tenant) |
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Term
| How is a Tenancy at Sufferance terminated? |
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Definition
| After a reasonable time to make demand (get out) or election (if you stay, it is now a periodic tenancy and this is the rent amount -- the rend must be reasonable in relation to the property) |
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Term
| When does a tenant become a trespasser in a Tenancy at Sufferance? |
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Definition
| When the landowner makes the demand (for the tenant to leave). This starts the adverse possession clock. |
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Term
|
Definition
| A promise to do or not do something |
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Term
|
Definition
| A party stating that a certain set of facts exist |
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Term
| What is the Covenant of Power to Demise? |
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Definition
The landlord is stating that he has an estate in the property larger (longer in duration) than the leasehold estate.
Always implied into any leasehold or landlord/tenant relationship. |
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Term
| What is the Covenant of Quiet Enjoyment? |
|
Definition
A promise that you will enjoy possession without interference by the landlord or anyone else with superior rights to the property.
Always implied into any leasehold or landlord/tenant relationship. |
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Term
| What are the 2 rules with respect to the Covenant to put the tenant into actual (as opposed to legal) possession/covenant that the premises be open to entry? |
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Definition
1. American - this covenant is not implied; once a tenant has a legal right to possession, it is up to the tenant to get a trespasser off the property
2. English - the responsibility falls upon the landlord because he is in a much better position to know that this condition exists, so this covenant is implied in the lease unless there is an explicit repudiation |
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Term
| What are the three types of recording statutes? |
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Definition
1. Notice (purchaser of value + notice)
2. Race (First person to record wins)
3. Race-Notice (Person must provide notice and be the first to record) |
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Term
| Does a tenant have a duty to actually possess the property? |
|
Definition
| Typically, no, unless explicitly stated in the lease. But there have been times when courts have found a duty (usually in the commercial context) |
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Term
| What is the Warranty of Fitness for Particular Purpose? |
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Definition
| Implied warranty by landlord that premises would be fit for any purpose. Exceptions: short term lease of furnished residence and buildings under construction when rented. |
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Term
| What is the Warranty of Habitability? |
|
Definition
| Implied warranty by landlord that he will take all reasonable action to maintain the premise in habitable condition, including duty to repair. Residential leases only. |
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Term
| What remedies are available to a tenant when a defect effects habitability? |
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Definition
1. Rescission of contract (termination of lease)
2. Damages (compensatory..sometimes punitive)
3. Rent Withholding
4. Reformation (reforming the lease) |
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Term
| What is a retaliatory eviction? |
|
Definition
| When the landlord evicts tenant after tenant makes a complaint |
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Term
| What is the traditional rule regarding fitness and repair of leased premises? |
|
Definition
| A tenant cannot get out of a lease on account of an undisclosed defect on the premises (buyer beware) |
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Term
| Types of Notice ( under recording statutes) |
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Definition
1. Actual notice
2. Record notice (public records give constructive notice)
3. Inquiry notice (facts observable from inspection of the property give constructive notice) |
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Term
| When does a landlord have a duty to warn of fitness and repair of property? |
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Definition
| Courts will impose the duty on a landlord who fraudulently conceals defects |
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Term
| If the government orders repairs to be made, who should pay for them (landlord or tenant)? |
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Definition
| If there is a net lease, then the tenant has the duty. If not, then the landlord has the duty to pay. |
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Term
|
Definition
| A lease that transfers everything (responsibilities, duties, etc.) |
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Term
|
Definition
A deed that is transferred and unrecorded, then transferred again and recorded.
EX) A transfers to B, B does not record, B transfers to C, and C records. C's deed will not appear in the chain of title. |
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Term
| What are the factors in determining whether there is a net lease? |
|
Definition
1. Relationship of the cost of the curative action and the rent reserved (if amount of repairs is way > than rent paid over lease, then LL pays)
2. Term for which the lease was made (Short term = LL pays; long term = T pays)
3. Relationship of the benefit to T compared to that of LL (if repairs outlast lease then LL gets benefit and LL should pay)
4. Whether curative action is structural or nonstructural (structural = LL pays)
5. Degree to which Ts enjoyment of premises will be interfered with during repairs (if highly intrusive, LL pays)
6. Likelihood that parties anticipated government order for repairs (if unanticipated, LL pays) |
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Term
| What effect does a wild deed have under the three recording statutes? |
|
Definition
| Courts generally treat a wild deed as unrecorded, so it fails to provide notice or "win" in a race jurisdiction. The Wild Deed is completely useless under all three statutes. |
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Term
| True or False: If a landlord promises to do a bunch of things, they must make good on all the promises before a tenant has to pay rent. |
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Definition
| False. The only thing a landlord has to do in order for a tenant to owe rent is give ACTUAL possession |
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Term
|
Definition
| When the landlord wrongfully ousts the tenant from physical possession; the wrongful act deprives the tenant enjoyment of the premises |
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|
Term
| What is constructive eviction? |
|
Definition
| Although there is no physical ousting, the landlord acts substantially and materially, depriving the tenant of beneficial use and enjoyment of the premises. Required for constructive eviction is abandonment of the property. The wrongful act makes the premises untenantable. |
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Term
| What is a late recorded deed? |
|
Definition
A deed that is first transferred, but recorded after the property was transferred again by the grantor.
Effect: Jurisdictions are split on treating this as recorded or not
EX) B conveys blueacre to C(2000) then B conveys to X(2001). C then records his deed (2002) and X records his deed a year later (2003). |
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Term
| What is the Housing Code approach for when a tenant owes rent? |
|
Definition
| The landlord must give actual possession AND meet a warranty of habitability |
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Term
| How does the Statute of Frauds apply to termination of a leasehold estate? |
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Definition
Varies by jurisdiction.
Ex. For a 5 year tenancy, if surrender is at 4.5 years, some courts will look to the whole 5 years and apply SoF while some will only look at the 0.5 year left and not apply SoF |
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Term
| Estoppel by Deed ("After acquired title") under recording statutes. |
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Definition
1. When property is conveyed before the grantor actually has title, and he later acquires titles.
EX) C conveys the land before B conveys it to him. If C eventually gets title, C's conveyance retroactively becomes valid and recordable. |
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Term
| Analysis for Recording Statutes |
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Definition
Generally, The question to ask is "When will we reverse the result of 'First in time, first in right'"
1. Identify the type of statute
2. Pay close attention to the order of events
3. Determine notice and who are purchasers of value |
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Term
| What are the three present deed covenants and why are they called 'present'? |
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Definition
1. Seisin - Promise that the grantor owns land
2. Right to convey - Promise that the grantor has the right to transfer
3. Against Encumbrances - The promise that the property is free of encumbrances
The Statute of limitations starts to run when the deed is delivered |
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Term
| What are the future deed covenants and when does the statute of limitations begin to run on them? |
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Definition
Warranty and Quiet Enjoyment - Promise to compensate the grantee if he's evicted by some defect of title or superior interest
2. Further assurances - promise to correct defects of title
The statute of limitations begins to run upon eviction by a holder of paramount title. |
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Term
| What are the three major characteristics of Deed covenants. |
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Definition
1. They are not implied by courts and must be expressed on the face of the document
2. An action for breach of a deed covenant can only be brought after legal title has been transferred.
3. Breach of a covenant only produces damages (Unless specifically stated in the deed) |
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Term
| Requirements for deeds under the statute of frauds? (4) |
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Definition
1. Intent
2. Delivery
3. Transfer
4. Signed by the Grantor |
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Term
| What is a General Warranty Deed? (Warranty) |
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Definition
| It warrants that the title is good. It gives all 6 deed covenants |
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Term
| What happens when a tenant abandons property? |
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Definition
This is considered an offer of termination. The landlord can:
1. Accept the offer and effect the termination (re-enter on landlord's account)
2. Do nothing and collect/expect rent (then sue for anticipatory breach)
3. Re-enter on the tenant's account and re-let to another tenant ("mitigation") |
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Term
| When is a landlord liable for injuries sustained by a tenant or third party? |
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Definition
1. Injury occurs in a common area
2. Injury occurs due to latent defect that landlord failed to disclose
3. Injury occurs due to negligent repairs, but only if landlord voluntarily undertakes to make repairs |
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Term
|
Definition
| Defects that cannot be seen |
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Term
|
Definition
| A defect that can be seen |
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Term
| A landlord will not be liable to tenant or third parties entering the premises for defective conditions existing at the time of the lease, UNLESS... |
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Definition
1. The condition is latent - known to the leasor and unknown to leasee
2. Conditions are dangerous to persons outside the premises
3. Premises leased for admission of the public
4. Landlord retains control over portion of the premises (common areas)
5. Tenant and landlord agreed that landlord would make repair
6. Landlord negligently made repairs |
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Term
| If a lease restricts the use of property to something illegal, then... |
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Definition
| The lease is not enforceable, but only if ALL uses are illegal under ALL circumstances. A partially illegal lease is enforceable. |
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Term
| What does a Limited Warranty deed (Bargain & Sale) warrant? |
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Definition
| Warrants that the seller has done nothing to impair the title. |
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Term
| What is supervening illegality (aka commercial frustration)? |
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Definition
Occurs when a lease is restricted to a particular use that is legal when the lease is entered into, but sometime during the lease becomes illegal.
Some jurisdictions will let the tenant out of the lease if no legal uses remain |
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Term
| What does a Quitclaim deed warrant? |
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Definition
| Nothing. No warranty of title. "What I've got, you've got" |
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Term
|
Definition
| Transferring all you have left of your lease |
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Term
|
Definition
| Transferring less than your entire remaining lease, even if it's just less by one day |
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Term
| If a landlord leases to T1, and T1 assigns to T2, who can the landlord go after for breaches (such as failure to pay rent)? |
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Definition
Both T1 and T2 because:
- T1 is in privity of contract with LL
- T2 is in privity of estate with LL
- T1 and T2 are in suretyship: T2 is primarily responsible while T1 is secondarily responsible (so if LL only goes after T1, T1 can go after T2) |
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Term
| If a landlord leases to T1, and T1 subleases to T2, who can the landlord go after for breaches (such as failure to pay rent)? |
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Definition
| Only T1, because T2 is not in privity of estate or contract with the landlord |
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Term
| What is privity of estate? |
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Definition
| When two estates touch in time |
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Term
| What kind of circumstances produce an Absolutely Void deed? |
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Definition
| Forgeries, undelivered deeds, deeds obtained by fraud in execution |
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Term
| What circumstances produce a voidable deed? |
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Definition
| Deeds procured through fraud in the inducement, those given under duress, and sometimes deeds given to minors. |
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Term
| What is an assumption agreement? |
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Definition
When an assignee (T2) agrees to be liable, and this makes the assignee (T2) in privity of contract with the landlord even if T2 assigns to someone else (T3).
An assumption agreement is not a release of the original lease between LL and T1 |
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Term
| Deed Canons of construction |
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Definition
1. Deeds are interpreted against the grantor
2. Extrinsic evidence can explain a latent ambiguity, but not a patent one
3. Monuments > Courses > Distances
4. Boundary extends to center stream,
5. Deeds include appurtenances even if they're not written in.
The rest say things like clear descriptions are superior to vague ones. |
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Term
| How can an original tenant (T1) get out of a lease? |
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Definition
1. The landlord releases T1 from the contract
2. An agreement between landlord and T2 creates a new leasehold because it is something larger (longer) than what T1 had (this is called a "novation") |
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Term
| What are the remedies for breach of real estate contracts? |
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Definition
1. Specific performance
2. Compensatory damages
3. Equitable conversion |
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Term
| What is the majorityy rule of when a lease contains an approval clause for assignments? |
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Definition
| The lessor may arbitrarily refuse to approve a proposed assignee no matter how suitable the assignee appears to be and no matter how unreasonable the lessor's objection |
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Term
| What is the minority rule regarding when a lease has an approval clause for assignments? |
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Definition
| Consent may be withheld only where the lessor has a commercially reasonable objection to the assignment, even in the absence of a provision in the lease stating that consent to assignment will not be unreasonably withheld |
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Term
| What is a covenant running with the land? |
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Definition
Not necessarily an interest in land, but it's an interest that grows out of promises made by landowners (usually concerning how the promisor's land will be used or enjoyed).
A covenant is a non-possessory interest in land.
Every covenant has both a benefit and a burden. |
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Term
| Who is bound by covenants running with the land? |
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Definition
| Not only the original parties to the agreement, but also to the people who later acquire the interest in the land in the original agreement |
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Term
| What are the steps to working a covenant running with the land problem? |
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Definition
1. Identify the burden and the benefit of the covenant
2. Identify interests in the land that the benefit and burden are associated with
3. Have either of those interests been transferred? If yes, go to Step 4
4. Does the benefit or burden run with that transferred interest? |
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Term
| How can covenants running with the land be enforced? |
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Definition
1. At law (legal remedy = damages)
2. In equity (injunction) |
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Term
| What are the requirements for a covenant to bind an assignee of a leasehold? |
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Definition
1. Intent (by the original covening parties that the benefit/burden run to successors in interest)
2. "Touch and concern" the estate
3. Privity (both horizontal and vertical)
(4. Writing - Statute of Frauds requirement) |
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Term
| What are the tests for determining if a covenant "touches and concerns" an estate? |
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Definition
1. The Bigelow Test: Does the burden/benefit make the ownership of the interest more valuable?
2. The Clark Test: If an individual would naturally regard the covenant as benefiting the promisee or burdening the promisor, the requirement is fulfilled
3. Traditional Method: Is the covenant one that has traditionally been held to touch and concern an estate? (paying rent, use restrictions) |
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Term
|
Definition
When problems occur during the executory period, The court decides who assumed the risk of loss. Two steps
1. Is the property real or personal?
2. Risk of loss
Risk of physical loss (like a tornado destroying the land) usually goes to the purchaser, Risk of legal loss (failure to meet zoning regulations) is generally on the seller. |
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Term
| What is horizontal privity? |
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Definition
- Rests on the relationship of the original covenanting parties
- Requires that at the time the promisor entered into the covenant with the promisee, the two shared some interest in the land independent of the covenant |
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Term
| How is the horizontal privity requirement met? |
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Definition
1. A relationship of tenure
2. Simultaneous interest in the same piece of land (i.e. one has FSA and the other an easement); this is generally limited to a covenant that relates to the simultaneous interest
3. Instantaneous privity (when land is transferred, the moment at which the deed is delivered, both parties have the deed in hand, a legal fiction of instantaneous privity exists)
4. No horizontal privity required |
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Term
|
Definition
| An easement is an interest in land that is non-possessory. Its an interest in land that allows for some use of the land, as opposed to possession. |
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Term
| What is vertical privity and how is this requirement satisfied? |
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Definition
It is the relationship between one original covenanting party and a successor in interest.
The requirement is satisfied if the entire estate (entire durational interest) was transferred. Basically, it must be an assignment and not a sublease. |
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Term
| When do problems with vertical privity arise? |
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Definition
1. A transfer of less than the predecessor's full estate
2. Adverse possessors
3. Third party beneficiaries |
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Term
| What are profits a pendre? |
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Definition
A right or interest to sever or remove something from the land
ex: mining rights, sand, timber, oil, etc are all profit rights/interests |
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Term
| What is an Easement Appurtenant? |
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Definition
An Easement appurtenant serves some other piece of land.
EX) Like a driveway going through A's land to reach B's. B is the dominant estate because its benefitting from the driveway through A's |
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Term
| What is an Easement in Gross? |
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Definition
Ownership is not related to a particular interest in land.
EX) Power lines or water manes. There's no dominant or servient estate. |
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Term
| Does a tenant who assigns a leasehold escape liability on covenants running with the land? |
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Definition
No. The burden of the covenants runs and becomes liabilities for the assignee,but they remain liabilities for the assignor as well (privity of contract vs privity of estate).
Only an express release by the landlord to original tenant will alleviate liability. |
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Term
| How are easements created? |
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Definition
1. By Grant
2. By Implication
3. By Prescription |
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Term
| Easements by Grant are created when |
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Definition
| The easement is granted or reserved in an explicit transaction where the easement rights are carved out of a larger interest. |
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Term
| What are equitable servitudes? |
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Definition
| An alternative theory of enforcement for a covenant running with a FSA. Enforcing in equity, so relief sought is an injunction. |
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Term
| What are the three ways Easements are created by Implication? |
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Definition
A. Prior-use (Quasi-easement)
B. Necessity
C. by Plat. |
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Term
| How to show partial performance to get around the statute of frauds in easement cases |
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Definition
1. Actual use of the easement
2. Payment or tender of consideration
3. The making of permanent value improvements
Generally, only two of three are required to get around the statute of frauds. |
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Term
| What are the requirements for an equitable servitude? |
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Definition
1. Intent
2. Touch and concern
3. Notice |
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Term
| How the notice requirement be met for equitable servitudes? |
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Definition
1. Actual knowledge
2. Inquiry (or appearance) notice - something about the property would put a reasonable person on notice that there is a restriction the person should ask about
3. Constructive (or record of chain of title) notice - courts will treat the person as if he had notice because the covenant was recorded with the title |
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Term
| Detrimental Alliance in easement cases (avoiding the statute of frauds) |
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Definition
In cases where the injured party pays for some part of the easement (Like paying to have a driveway paved)
Tries to show the existence of an easement because no reasonable person would have paid so much into it for a revocable license |
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Term
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Definition
| Something on other people's land that could potentially lower the value of your land |
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Term
| Elements of a Quasi-easement (Implied easement created by prior use) |
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Definition
1. Severance of unity of title
2. Use from before is continued after severance
3. Reasonable necessity
4. must be Continuous
5. must be Apparent. |
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Term
| When does a Master Declaration become effective? |
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Definition
| When there are two parties (so when the developer sells the first plot) |
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Term
| When and for what is a Common Plan used? |
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Definition
- Used when there is no Master Plan for a development
Used for:
- identifying the benefited land
- allowing earlier transferred lots to enforce covenants against later transferred lots
- imply a covenant on a lot that did not have that covenant expressly placed upon it (when doing this it is important to establish the covenant was in place before the lot was purchased) |
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Term
| How will courts interpret an ambiguous covenant? |
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Definition
| As being less restrictive as opposed to more restrictive |
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Term
| What is an easement (positive)? |
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Definition
| A right to make limited use of another's land |
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Term
| What is a negative easement? |
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Definition
| The right to prevent another person from making certain uses of his land (nothing more or less than a restrictive covenant) |
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Term
| What is a Master Declaration? |
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Definition
All the covenants for a subdivision are recorded under the developers name, and a reference is made in the deed for each lot sold
(prevents having to insert all the covenants in every deed, and inadvertently omitting some) |
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Term
| Unity of Title in Quasi-Easements |
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Definition
1. Must have been owned by one person at some point
2. A severance must have taken place
3. Look at what is occurring at the time of the severance. |
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Term
| Waiver, abandonment, and acquiescence as it applies to covenants |
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Definition
- 3 indistinguishable concepts
- idea that if no one attempts to enforce a covenant in the face of a substantial number of violations, the owners must intend to give up that right |
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Term
| Apparent requirement of Quasi easements |
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Definition
1. Visible
2. Reasonably discoverable
3. There is a duty to Inquire |
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Term
| Continuous requirement of Quasi easements* |
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Definition
-Relates to apparent requirement,
-Must have held without interruption
-Use pre-severance can't be deemed an ease
**I think it means that when the title becomes unified, it can't reserved as an easement. It has to be absorbed into the greater title. |
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Term
| What is divisibility (as it relates to easements)? |
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Definition
| When the original holder of the easement grants only a portion of his right to another while retaining the remainder of his original rights for his own use |
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Term
| What is the 2-step analysis for when an easement is divisible? |
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Definition
1. Is the easement divisible? (Look to the instrument creating the easement)
2. Is the easement exclusive or non-exclusive? (Easement holder can only divide interest if his interest is EXCLUSIVE) |
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Term
| Three types of Necessity in Quasi-Easements |
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Definition
1. Strict Necessity
2. Reasonably necessary
3. Valuable convenience |
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Term
| What is an exclusive easement? |
|
Definition
| An easement that gives the holder complete control over easement interest, even to the exclusion of the owner of the underlying land |
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Term
| What is a non-exclusive easement? |
|
Definition
| An easement that retains for the owner of the underlying land a right to use the interest simultaneously with the easement holder |
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|
Term
| Quasi-Easements and the Statute of Frauds |
|
Definition
1. Automatically pass the statute of frauds by definition.
*Not really explained, but in the commercial Outline |
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Term
| What is an expansive easement? |
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Definition
| Gives narrow rights of use initially, but then through the payment of some agreed upon amount of money, the use will expand (used when searching for oil and minerals) |
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Term
| Requirements of an Implied Easement by Necessity |
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Definition
1. Severance of unity of title to land held in common ownership.
2. Strict necessity for the easement at the time of severance |
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Term
| What are the rules regarding rights and duties to repair and easements? |
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Definition
- An easement owner generally has the right to make repairs (would not need permission from the servient landowner)
- Improvements are not necessarily a right of the easement holder
- Neither party has a duty to make repairs as a matter of property law (but other areas may create a duty [Apolinsky!]) |
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Term
| Strict Necessity in implied easements |
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Definition
| Necessity for Egress/Ingress (Enter/Exit) to and from the appurtenant land. |
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Term
| What are the rules regarding location and relocation of easements? |
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Definition
- If the location of the easement is spelled out in the original deed, courts are less likely to allow relocation. If not, courts will likely follow Restatement rule.
- Restatement allows for the owner of the servient estate to make reasonable changes in the location or dimensions of an easement, at the servient estate owner's expsnse, if the change do NOT:
1. Significantly lessen the utility of the easement
2. Increase the burdens on the owner of the easement in its use and enjoyment
3. Frustrate the purpose for which the easement was created |
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Term
| Requirements of an easement by necessity |
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Definition
1. Severance of unity of title,
2. Strict Necessity for the easement at the time of severance |
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Term
| Duration of a quasi-easement |
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Definition
| An easement implied by prior use once established, is permanent |
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Term
| Duration of an easement implied by necessity |
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Definition
| Extinguishes once reasonable access to a public road becomes available. |
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|
Term
| Rules for Easements created by Platt* |
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Definition
1. Broad Unity Rule
2. Intermediate or Beneficial of Full enjoyment rule
3. Narrow or Necessary rule
*No explination |
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Term
| Easements can terminate by: |
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Definition
1. Their own terms
2. Termination of grantor's estate
3. Release (opposite of a grant)
4. Merger (when the owner of the dominant tract comes to own the servient land)
5. Abandonment
6. Estoppel
7. Adverse possession (easements can be reclaimed by AP)
8. Eminent domain of the servient estate when the govt's use of the easement is inconsistent with its original use
9. Grant of a license to obstruct the easement
10. Destruction of the servient estate (usually for easements within buildings)
11. Tax sale of servient estate
12. Superior mortgage rights (mortgage rights created before the easement) |
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Term
| Does non-use of an easement establish abandonment? |
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Definition
| No. There must be acts by the owner of the easement clearly inconsistent with an intention to continue use of the easement. |
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|
Term
| What are the stages for the sale of land (between the buyer and seller)? |
|
Definition
1. Pre-contract (then a contract is signed)
2. Executory (then, at the closing, the deed is delivered)
3. Post-closing |
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|
Term
| Elements of an Easement by Prescription |
|
Definition
1. Actual Use
2. Open and Notorious
3. Continuous and uninterrupted for 10 years.
4. Adverse to the owner
5. With knowledge of such owner at the time when he was able to assert and enforce his rights |
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Term
| What are the 3 types of seller-broker contracts? |
|
Definition
1. Exclusive agency - the broker is the exclusive agent of the buyer, but the seller is allowed to sell directly to someone else w/o the broker getting a commission
2. Exclusive right to sell - When the house sells, the broker is entitled to commission regardless whether the owner brings in the buyer or the broker finds the buyer
3. Non-exclusive - the seller can have many brokers |
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|
Term
| Scope of easement by implication. |
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Definition
| What would the parties reasonably expect in terms of the future uses |
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|
Term
| How to determine, Scope of easement by prescription |
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Definition
Look to:
1. The location of the easement (defined by the use that got the claimant the prescriptive right)
2. The initial use of the easement (this does not fix the scope of the easement eternally; it can change over time but the changes can't be substantial) |
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Term
| For part performance, look to (real estate contracts): |
|
Definition
1. Payment of part of purchase price
2. Taking of possession
3. Improvements |
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|
Term
| If you want to argue change of use in easements, talk about: |
|
Definition
1. A change in the types of vehicles
2. A change in the amount of traffic |
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