Property (Bar Exam)

in general, the NEW tenant is liable for covenants made by the original tenant IF:

(a) the new tenant has the old tenant's full estate and the covenant touches and concerns the land; OR (b) the new tenant assumed the covenant in question -if NEITHER of these apply, T2 is NOT bound

prescription:

(similar to adverse possession) → to acquire a prescriptive easement, the use must be: i) open and notorious (discoverable upon inspection) ii) adverse (w/o the owner's possession); AND iii) continuous and uninterrupted; iv) for the statutory period NOTE: generally, prescriptive easements cannot be acquired in public land

promissory restraint

-"To A, but A agrees and covenants never to transfer this land without my consent." -the promissory restraint here is marked by the veto clause ("A agrees and covenants never to transfer this land without my consent)

Fee Simple:

-"magic words" for creating a fee simple → "To A and his heirs." (not required, but still ok) -if no further words are added, it is a fee simple absolute → "To A." -defining characteristic: this is absolute ownership of potentially infinite duration -it is freely devisable, descendable, and alienable -it has NO accompanying future interest

Common Ownership Cases

-A common ownership case is one in which the person who brings the chattel to the land owns both the chattel and the land (e.g., X installs a furnace in his home). An item is a "fixture" if the objective intention of the party who made the "annexation" was to make the item part of the realty. -This intention is determined by: the nature of the article, the manner of attachment, the amount of damage that would be caused by its removal, and the adaptation of the item to the use of the realty

rule against perpetuities

-A future interest covered by the RAP is void unless it is certain to vest or fail within 21 years after some life in being -life in being: someone alive now who was named/implied in the conveyance

rules about restraints

-ALL disabling restraints, on all kinds of interests, are -VOID, except in a "spendthrift trust" forfeiture and promissory restraints are sometimes enforced

surrender

-L accepts T's offer to convey the leasehold to L -NOTE: surrender must be in writing if the lease is for more than 1 year

Two Types of Estates:

Freehold Leasehold

RIGHTS IN THE LAND OF ANOTHER - EASEMENTS, PROFITS, COVENANTS AND SERVITUDES

IN GENERAL: easements, profits, covenants, and servitudes are nonpossessory interests in land, creating a right to use land possessed by someone else

assignments by landlords

-L1 leases a building to T. During the lease term, L1 sells the building to L2. -rents then attorn to the new L -L1 and L2 are personally liable to T for performance of a covenant to maintain the property and pay the taxes → these covenants touch and concern the land, so their burden runs to L2 and both must maintain property -only L1 is personally liable to T for a covenant to return the security deposit → the covenant does NOT touch and concern the land, so its burden does NOT run to L2 -NOTE: writing a check does NOT touch and concern the land, so it doesn't run

Divided Ownership Cases - Landlord-Tenant

-RULE: an AGREEMENT b/w the L and T is controlling on whether an annexed chattel is a fixture -absent an agreement, a tenant is deemed to lack the intent to permanently improve the property, and thus may remove his annexed chattels if removal does not substantially damage the premises or destroy the chattel -annexed chattels must be removed by the end of the lease term (or w/in a reasonable time after the termination of an indefinite tenancy), and the T is responsible for repairing any damage caused by the removal

If T abandons and L attempts to relet, L can also recover from T (up to T's full rent) for:

-actual expenses (actual expenses = advertising the apartment, paying a broker to find a new tenant, etc.) AND -full rent while seeking a new tenant

creation of an easement - express reservation

-an easement by reservation arises when a grantor conveys title to land but reserves the right to continue to use the tract for a special purpose -NOTE: an easement can be reserved only for the GRANTOR → an attempt to reserve an easement for anyone else is VOID

rights between co-tenants

-an equal co-tenant does not have to pay for possession -an equal co-tenant that rents out the property for a profit must pay other co-tenants their share of the profits -co-tenants must contribute to reasonable repairs and expenditures -co-tenants do NOT have to contribute to another co-tenant's improvement on the property -HOWEVER, a co-tenant that makes an improvement is entitled to any gains on a subsequent sale that are directly attributable to that co-tenant's improvements

waste

-an obligation to maintain property on behalf of a future interest holder -the future interest holder can sue if the present possessor commits waste -waste is attached to remainder interests -remainder man can sue if possessor is committing waste

warranty of habitability

-applies ONLY to residential property -breached by a material violation of the local housing code -must be fit for habitation → defined by local housing code -examples of material violations: no heat, no plumbing, no AC (in warmer states)

Easement Appurtenant

-benefits the holder in his physical use or enjoyment of another tract of land → for an easement to be appurtenant, there must be two tracts: the dominant tenement: the estate benefited by the easement servient tenement: the estate subject to the easement right -an easement appurtenant passes w/ the benefited land, regardless of whether it is mentioned in the conveyance -the BURDEN of the easement also passes automatically w/ the SERVIANT estate UNLESS the new owner is a bona fide purchaser with no actual or constructive notice of the easement

types of remainders

-contingent -vested

the Rule Against Perpetuities applies only to:

-contingent remainders -executory interests -class gifts (vested remainders subject to open are identical) -options to buy land -rights of 1st refusal

remedies for waste

-damages -an injunction

Example of a Constructive Eviction:

T leases office space in the basement of a commercial building. Each time a hard rain occurs, the office is filled with several inches of water. → constructive eviction

release

T purchases L's interest → the rents and reversion merges with T's leasehold, giving T a fee simple absolute

sublease

T1 transfers only a part of his remaining term to T2

implied covenant of quiet enjoyment

-even if no injury to person or property is involved, L can still be liable for this -every lease (commercial AND residential) of every type is deemed to violate this covenant

3 estates can be owned by tenants:

-fixed term: ends automatically -periodic: either party must give notice to terminate → renews itself -at-will: has no definite term → either party can terminate at any time

Condemnation of Leaseholds

-if the entire leasehold is taken by eminent domain, the tenant's liability for rent is extinguished b/c both the leasehold and reversion have merged in the condemnor and there is no longer a leasehold estate -the lessee is entitled to compensation -However, if the taking is TEMPORARY or PARTIAL, the tenant is not discharged from the rent obligation, but is entitled to compensation (i.e., a share of the condemnation award) for the taking

Divided Ownership Cases

-in divided ownership cases, the chattel is owned and brought to the realty by someone other than the landowner (e.g., tenant, licensee, or trespasser). -Accession: describes the annexor's intent to make chattels a permanent part of the real estate

easements - scope

-in the absence of specific limitations in the grant, courts assume that the easement was intended to meet both present and future needs of the dominant tenement -if the dominant parcel is subdivided, the lot owners will not succeed to the easement if to do so would unreasonable burden the servient estate -NOTE: overuse or misuse of an easement DOES NOT TERMINATE the easement → remedy is an injunction against the misuse

precatory language

-magic words: "in the hope that" "in the expectation that" -NOTE: these phrases have NO legal significance → you need a TIME ELEMENT

fee tail

-magic words: "To A and the heirs of his body." -today, considered a fee simple absolute

Does T need L's consent to enter into an assignment or sublease?

-only if the lease requires it -If there is a consent clause in the lease, and T makes a transfer without L's consent, the transfer is effective but it is also a breach of the lease, allowing L to claim damages (if provable) and also to terminate the lease (and hence, the sublease or assignment)

2 types of partition

-partition in kind: court places a boundary separating the co-tenants (works for farms, land) -partition in sale: court orders a sheriff to sell the property and divide the proceeds among the co-tenants --this is what happens with single family homes → they can't be split up with a boundary

concurrent ownership:

-property with more than 1 owner -general rule: we PRESUME that a tenancy in common is intended unless the grantor states it's a joint tenancy

interests the landlord owns:

-rents: a present nonpossessory interest → rent is property -reversion: a future interest, giving landlord possession when the lease expires

discriminatory restraints

-restraints prohibiting the transfer or use of property to or by a person of a specified racial, religious, or ethnic group are not enforceable -14th Amendment: judicial enforcement of a covenant forbidding use of property by persons of a particular race is discriminatory state action forbidden by the 14th Amendment -Fair Housing Act: recording a deed with a racial restriction is prohibited

Types of future interests which are always created IN THE GRANTOR:

1) a possibility of reverter follows a fee simple determinable -- (ex: "To A and her heirs so long as the property is used as a church building." → the grantor has a future interest) 2) a right of reentry follows a fee simple subject to condition subsequent -- (ex: "to A and her heirs, but if the property is no longer used as a residence, I may take back possession of it." → the grantor has a future interest) 3) a reversion (everything else) follows any other interest given by the grantor which is of lesser duration than he or she owns -- (ex: "To A for life." → the grantor has a future interest)

The 4 types of Freehold Estates:

1) life estate → the right to possess for your life or someone else's 2) fee tail 3) fee simple absolute → all the rights one can possess 4) defeasible fees → an interest with a future interest attached

requirements to escape liability for ameliorative waste:

1) neighborhood must have changed, making present use infeasible AND 2) building must be replaced with one having equal or greater value -if these requirements are not met, it is ameliorative waste

types of executory interests:

1) shifting executory interest: 2 grantees, 1 present, 1 future, and it shifts between them -- (ex: "To A until (so long as, but if) ..., then to B.") 2) springing executory interest: cuts estate short (ex: "To A, to take possession (on A's 21st birthday, when A graduates, or some other future date or event).")

things that are considered reasonable expenditures:

1) taxes 2) mortgage payments 3) insurance

two types of concurrent ownership:

1) tenancy in common 2) joint tenancy with right of survivorship

forfeiture and promissory restraints are more likely to be upheld if:

1) the interest is less than a fee simple absolute (e.g., a life estate or leasehold) 2) the restraint is limited in time and in the number of persons affected 3) the restraint has a reasonable purpose 4) the land was conveyed for a charitable use

Types of future interests which are always created in someone OTHER THAN THE GRANTOR:

1) the remainder is the older type, and can only exist if certain rules are met -- (ex: "O to A for life, then to B." → B has a remainder; B must wait) -NOTE: remainder man always waits for an estate to end 2) executory interest is the "catch-all" → it's any future interest, created in one other than the grantor, which does not meet the rules for remainders -- (ex: "O to A, unless alcohol is served, then to B." → B does not wait, he pounces) -NOTE: an executory interest cuts another estate short

there is a contingent remainder IF:

1) the taker is UNASCERTAINABLE (ex: O conveys "To A for life, then to B's heirs." → If B is alive, we cannot tell who B's heirs will be, so their remainder is contingent); or 2) there is an expressed condition precedent (ex: O conveys "To A for life, then to B if and when B removes his Snookie tattoo." → B's remainder is contingent until B removes his tattoo, then it becomes vested, even if A is still alive)

An Estate's Distinguishing Characteristics:

1) whether it is devisable → can it pass by will? 2) whether it is descendable → will it pass by statute if there is no will? 3) whether it is alienable → can you transfer it inter vivos (during life)?

total restraint

Any total restraint on a fee simple -- either forfeiture, disabling, or promissory -- is void. The grantee may IGNORE the restraint and freely transfer the property.

fixture

a chattel that has been so affixed to land that it has ceased being personal property and has become part of the reality → a fixture passes with the ownership of the land

partition

a court splits up the co-tenancy; this is always available to any tenancy in common or joint tenancy with right of survivorship

title theory of mortgages

a mortgage is like a deed; it's as though you sold your interest

Easement, in general

an easement holder has the right to use another's tract of land for a special purpose (e.g., to lay pipe, to access a road or lake), but has no right to possess or enjoy that land → an easement is presumed to be of PERPETUAL DURATION unless the grant specifically limits the interest

easement implied from existing use ("quasi-easement")

an easement may be implied if: i) prior to the division of a single tract; ii) an apparent and continuous use exists on the "servient" part; iii) that is REASONABLY NECESSARY for the enjoyment of the dominant part; AND iv) the court determines that the parties INTENDED the use to continue after division of the land

creation of an easement - express grant

any easement must be in writing and signed by the holder of the servient tenement unless its duration is brief enough (commonly one year or less) to be outside the coverage of a particular state's SOF → a grant of easement must comply with all the formal requisites of a deed

easement by necessity

arises when a landowner sells a portion of his tract and by this division deprives one lot of access to a public road or utility line → the owner of the servient partial has the right to locate the easement

creation of easement - implication

created by operation of law; an exception to the SOF

negative easement

entitle the holder to compel the possessor of the servient tenement to refrain from engaging in an activity on the possessor of the servient tenement to refrain from engaging in an activity on the servient estate (e.g., building a structure in excess of 3 stories)

basic methods of creating an easement

express grant or reservation, implication, and prescription

per outre vie

for the life of another

Applying the RAP to EXECUTORY INTERESTS that follow DEFEASIBLE FEES:

if there is NO TIME LIMIT within which an executory interest must vest or fail, it is VOID

easement implied w/o any existing use

in 2 limited situations, easements may be implied w/o preexisting use: i) subdivision plat ii) profit a prendre

lien theory of mortgages

lien = security interest; NOT a transfer of title

Estate

means that the estate holder has a RIGHT TO POSSESSION

ouster

one co-tenant keeps another co-tenant out of possession with force or threats

Ways in which an EASEMENT can be TERMINATED:

stated conditions unity of ownership (merger) release abandonment estoppel prescription necessity condemnation and destruction

if a joint tenant wants to convert his or her interest into a tenancy in common...

that joint tenant must convey to a straw man

landlord's negligence

the court may hold that the landlord is responsible for injuries resulting from negligence wether the 6 situations above exist or not

Landlord's liability for personal injury:

the general rule is caveat emptor (NO landlord liability)

affirmative easement

the holder is entitled to make affirmative use of the servient tenement

profit a prendre

the holder of the profit a prendre has an implied easement to pass over the surface of the land and to use it as reasonably necessary to extract the product

joint tenants with right of survivorship distinguishing characteristic

the right of survivorship → it means your interest transfers at death in its entirety

Chattels Incorporated into Structure

when items are incorporated into the reality so that they lose their identity (e.g., bricks, concrete), they are fixtures, as are items that are identifiable but whose removal would cause considerable damage (e.g., plumbing, heating ducts)

subdivision plat

when lots are sold in a subdivision w/ reference to a recorded plat or map that also shows streets leading to the lots, buyers of the lots have implied easements to use the streets to access their lots

forfeiture restraint

"To A, but if A ever transfers this land without my consent, I may reenter and terminate the estate."

partial restraint

-a restraint that purports to restrict the power to transfer to specific persons, or by a specific method, or until a specific time -this MAY be allowed

When the property is destroyed by fire, tornado, etc.:

-T has the option to terminate -NO common law obligation for L to rebuild

Example of a partial actual eviction:

-T leases from L a house with a detached garage. Later, L changes the lock on the garage so T cannot have access to it. L has breached the covenant by denying T possession. -Result: T has NO duty to pay ANY rent until access to the entire premises is restored

abandonment

-T vacates the premises, ceasing to pay rent -there is a duty to mitigate → L entitled to difference between old contract rent and new fair market value -L can recover this sum immediately as an anticipatory breach, but must discount T's liability to present value because L is getting it early

when T2 (in a sublease) defaults in rental payments:

-T1 is ALWAYS liable unless expressly released -T2 is generally NOT liable since T2, as a sublessee, does not have the full estate with which the covenant to pay rent runs -EXCEPTION: T2 is liable on a contractual basis if T2 expressly assumes the lease covenant to pay rent

assignment

-T1 transfers his entire remaining term to T2 -T1 is always liable for the rent, unless expressly released -T2 is liable for rent, and for all other covenants that "touch and concern the land" -most covenants touch and concern the land -example of a covenant that does NOT touch and concern the land: an agreement to enter into arbitration

Valid reasons for withholding consent (if L must be reasonable under terms of lease):

-T2 has a poor credit rating → valid -T2's business is incompatible with businesses run by L's other tenants → valid -L demands a rent increase, which T2 refuses to pay → invalid -NOTE: a consent clause is NOT leverage to raise rent

the four unities

-Unity of time → Necessary for joint tenancy with right of survivorship -Unity of title → Necessary for joint tenancy with right of survivorship -Unity of interest → Necessary for joint tenancy with right of survivorship -Unity of possession → Applies to both joint tenancy with right of survivorship AND tenancy in common --NOTE: ALL co-owners possess ALL the land, ALL the time

severance

-a conveyance of a joint tenancy interest to an "outsider" converts that interest into a tenancy in common -all you have to do is sell your share -NOTE: don't need other tenants' knowledge or permission to sever

restraint on alienation

-a provision that prevents an owner from transferring his or her interest in land -NOTE: don't confuse them with restraints on use → these are OK

disabling restraint

-stripping down the power to transfer → this is per se invalid -"To A, but if A ever attempts to transfer this land without my consent, the transfer shall be null and void."

remedies available to the tenant for a breach of the warranty of habitability:

-terminate the lease and move out -abatement of the rent -damages for breach of the warranty -repair and deduct from next month's rent -BUT, the tenant generally cannot get specific performance -NOTE: before claiming any remedy, the tenant must give landlord NOTICE and REASONABLE TIME TO CURE

Covenants made by the original tenant will be binding on T2 if:

-the covenant touches and concerns the land, AND -the FULL tenant's estate is transferred to T2 (i.e., it's an assignment)

Easement in Gross

-the holder of an easement in gross acquires a right to use the servient tenement independent of his possession of another tract of land; i.e., the easement benefits the holder rather than another parcel -an easement in gross for the holder's personal pleasure is NOT transferable, but one that serves an economic or commercial interest IS transferable

Rule for the Termination of Periodic Estates:

-the notice must be given one full period (period could be anything) in advance of termination date --EXCEPT: year-to-year leases or longer, in which case, 6 months is enough notice -the notice must cause a termination at the end of a regular leased period (i.e., month)

legal consequences of an ouster:

-the ousting tenant owes their share of the fair rental value -the statute of limitations in adverse possession begins to run

restraints on a fee simple

-total restraint -partial restraint

in the case of holdover Ts, L has two choices:

-treat T's rights as expired and bring an action in unlawful detainer -treat T as a periodic tenant, with a period based on the terms of the old lease

the Rule Against Perpetuities does NOT apply to:

-vested remainders (unless to a class) -future interests created in a grantor

examples of different types of waste:

-voluntary (affirmative) → A chops holes in the walls of the house -permissive → A allows leaks in the roof to get so serious that the timbers rot -financial → A fails to pay the property taxes or the interest on a mortgage -ameliorative waste is a fundamental change to the property

holdover tenants

-when T does not move out when the lease expires -if the old lease was for a year or more, T is now in a new year-to-year lease -if the old lease was for less than a year, T is now in a month-to-month lease -BUT, NO periodic tenancy will result IF the holdover was brief (a week or two) and beyond the tenant's control (emergency, such as a hurricane)

in partition proceedings, the court considers:

-whether A owes B any money for renting the property -whether B owes A any money for repairs, tax or necessary expenditures

EXCEPTIONS to general rule for Landlord's liability for personal injury:

1) common areas: landlord must maintain hallways and stairwells even w/o a promise to do so 2) covenant: if landlord promises to maintain property, he must do so 3) latent defect: landlord must warn of defects that landlord knows about or should know about 4) assumption of repairs: a landlord who voluntarily makes repairs must make them with reasonable care 5) public use rule: a landlord who leases public space and who knows, because of the nature of the property, that tenant will not repair --NOTE: used by public 6) short term lease of a furnished dwelling: almost always a vacation house → tenant not likely to make repairs

Elements of a Constructive Eviction:

1) conditions are equivalent to eviction 2) they must result from an act or omission of the landlord 3) tenant must move out

3 types of easements by implication:

1) easement implied from existing use ("quasi-easement") 2) easement implied w/o any existing use 3) easement by necessity

slayer statutes

Example: Assume A and B are joint tenants with right of survivorship. A illegally kills B. In the majority of states, the joint tenancy is deemed to be severed and A is now a tenant in common.

self-help eviction

Example: T's lease has expired, but T has not moved out. L changes the locks and puts T's possessions on the sidewalk. → L is liable for forcible entry and T can sue for damages.