Real Property

Creation of tenancy in common

"To A and B", or sometimes, "To A and B as joint Tenants." only unity required is possession

Termination of Easement:

(END CRAMP) - Estoppel: servient owner materially changes position in reasonable reliance on easement holder's assurances or representations (that easement will no longer be enforced) - Necessity: when need ends unless writing - Destruction: of servient land - Condemnation: of servient land by governmental eminent domain power - Release: by holder to servient, must be in writing - Abandonment: easement holder must show physical action demonstrating intent to never make use of easement agains - Merger easement & servient land become vested in one person - Prescription: by servient owner

If T breaches and is out of possession (i.e., if tenant wrongfully vacates with time left ): Landlords Options:

(SIR): S - Surrender: end lease (T shows by words or conduct that he wants to give up lease); I - Ignore: do nothing and hold T liable for rent (available in a minority of states); R - Relet: new lease and hold T liable for deficiency (Under majority, landlord must at least try to relet, i.e., mitigate)

Requirements for benefit to run: if the following requirements are met, the promisee B's successor in interest may enforce the covenant:

(WTIV) - Writing - Intent for benefit to rune - Touch and concern: the promise must affect the parties as landowners - Vertical Privty

Landlord's duty to possession of T

- Duty to place T in actual, physical possession. If holdover T still on site, L breached and new T gets damages

T's duty to repair with express covenant:

- Maintain premises in good repair/condition - T may terminate if premises destroyed without T's fault

T's duty to repair lease if lease is silent:

- T has obligation to maintain premises in reasonably good repair - Make routine repairs - Must not commit voluntary/affirmative, permissive, or ameliorative wast - No duty to for ordinary wear & tear repairs (passage of time; weathering)

Implied Promise in Land Sale Ks: Seller will not make False Statements of Material Fact: 1) Seller will be liable for failure to disclose if: 2) Disclaimers of Liability:

1) (i) The seller must know or have reason to know of defect; (ii) Seller must realize buyer is unlikely to discover defects; and (iii) Defect must be serious enough that the buyer would probably reconsider the purchase 2) Will likely be upheld if disclaimer identifies specific types of defect

Transactions that will not result in severance of a Joint Tenancy

1) A will is ineffective to work a severance because at death the testator's interest vanishes; 2) Mortgages: in most states, a mortgage is a lien on title and does not sever a joint tenancy. Severance occurs only if the mortgage is foreclosed and the property is sold. The execution of a mortgage in title theory states, however, does sever a joint tenancy

1) Covenant Definition; 2) Negative Covenant; 3) Affirmative Covenant

1) A written promise to do or not do something related to land 2) Also known as restrictive covenant and is a promise to refrain from doing something related to land 3) a promise to do something related to land

Wrongful Eviction Includes:

1) Actual eviction, which occurs when L or a hold-over T excludes T from entire leased premises (terminates T's obligation to pay rent). 2) Partial Eviction, which occurs when T is physically excluded from only part of the leased premises, and relieves T of the obligation to pay rent for the entire premises, even though T continues in possession of the remainder

1) What does it mean for a covenant to run with the land?

1) Any successor in interest to the burdened estate will be bound by the covenant as if they themselves had expressly agreed to it.

Assignment 1) Assignee and Landlord 2) Original T

1) Assignee and landlord are in privity of estate and each is liable to the other on all covenants in the lease that run with the land. 2) Original T remains liable on the original K obligations, such as to pay rent (privity of contract)

Transfer by Mortgagor 1) When a mortgagor transfer the property, the buyer either: 2) If a grantee assumes the mortgage: 3) If they take property subject to the mortgage:

1) Assumes the mortgage or takes property subject to the mortgage 2) They're agreeing to be personally liable on the mortgage note

Recording statutes. 1) Race. 2) Notice. 3) Race-Notice

1) B wins if recorded properly before A; 2) B wins if BFP when took (last BFP wins). 3) B wins if BFP and records properly before A

Land Sale Ks Must. 2) Exception

1) Be in writing; Signed by party against whom enforcement is sought; Must also: identify parties, describe property, state consideration 2) Part Performance: allows buyer to enforce oral K by part performance if: oral K is certain and clear; and an act proves existence by 2/3 of following: - buyer took possession, - buyer paid price or significant portion, - buyer made substantial improvements

1) when are future covenants breached? 2) What are the three future covenants?

1) Breached if grantee disturbed in possession 2) 1. Covenant of quiet enjoyment: grantor promises there are no 3rd party lawful claims; 2. Covenant of warranty: grantor will defend against anyone claiming title. 3. Covenant of further assurances: grantor will perfect title

The three types of partitions that sever joint tenancy

1) By voluntary agreement; 2) Partition in kind judicial action (physical division); 3) Forced sale judicial action (division of proceeds)

How do you create a Joint Tenancy?

1) Common law requires 4 unities (T-TIP): Joint Tenants must take their interests: T- at the same TIME; T - by the same TITLE (i.e., same deed, will, or other document of title); I - with IDENTICAl and equal INTERESTS; and P - with the right to POSSES the whole. 2) The grantor must clearly express the right of survivorship, otherwise, a conveyance to 2 or more persons without more is presumed a tenancy in common

Tenancy by Entirety cannot be severed by:

1) Creditors by only one spouse cannot touch this tenancy for satisfaction of debt; 2) One spouse alone cannot unilaterally convey to a 3rd party

Mortgages Definitions: 1) Mortgagor 2) Mortgagee 3) Promisory Note 4) Purchase Money Mortgagor

1) Debtor (person owing money to lender) 2) Creditor (lender) 3) Represents debtors personal obligation 4) Lenders security interest in real estate that their loan enables debtor to acquire. If debtor cannot pay back debt, creditor may foreclose upon the property

Distinguishing Features of Tenancy in Common

1) Each co-tenant owns an individual part, and each has a right to possess the whole, 2) Each interest is devisable, descendible, and alienable

Mortgages 1) The creditor-morgagee can transfer her interest by: 2) Limitations?

1) Indorsing the note and delivering it to the transferee; or Executing a separate document of assignment 2) Mortgagee can freely transfer the note, and the mortgage followed a property transferred not

Forms of Concurrent Estates

1) Joint Tenancy (two or more own with right of survivorship); 2) Tenancy by the Entirety (A protected marital interest between spouses with the right of survivorship); 3) Tenancy in Common (Two or more own without the right of survivorship)

1) Modern Trend for Landlord's Tort Liability. 2) What about for tort defects arising after T take possession?

1) L owes a general duty of reasonable care toward residential tenants, and will be held liable in tort resulting from ordinary negligence if L had notice of a defect and an opportunity to fix it 2) Not liable, unless L knew or should have known of them

1) Breach by Construction occurs when: 2) What are the elements T must claim

1) L's breach of duty renders the premises unsuitable for occupancy; 2) SING: (i) Substantial Interference (chronic/permanent problem due to L's actions or failures); (ii) Notice (T must notify and L must fail to fix it); (ii) Get out (T must vacate within a reasonable time after L fails to remediate).

Defenses to Equitable Servitudes:

1) Neighborhood conditions have changed; 2) Person seeking enforcement is violating similar restriction; 3) Benefited party acquiesced in a violation of the servitude by a burdened party; 4) Benefited party acted in such a way that a reasonable person would believe the covenant was abandoned or waived 5) Benefited party failed to bring suit against the violator within a reasonable time

Rights and Duties of Tenants in Common

1) No ouster (wrongful exclusion of part/whole); 1) No rents or profits required to other co-tenants for a tenant in exclusive possession absent agreement or ouster; 3) Fair share of rents and profits if leased to 3rd party; 4) No adverse possession unless ouster; 5) Carrying costs: each pay fair share; 6) Repairs: each pay fair share; 7) Unilateral improvements: no contribution required (credit at partition); and 8) Owe duty of fair dealing

Elements of Bona Fide Purchaser

1) Purchaser (didn't take by gift, will, inheritance) 2) Pay valuable consideration 3) Take without notice of prior conveyance

What are the 3 types of Deeds?

1) Quitclaim: no covenants of title 2) General Warranty: warrants against all defects of title (including by grantor's predecessors) 3) Special Warranty: warrants against all defect in title (only for grantor themselves, not for transgressions from predecessors)

1) Horizontal Privity refers to: 2) Horizontal Privity requires 3) What are some examples of succession of estate

1) Refers to the nexus between original promising parties . 2) at the time the promisor entered into the covenant with the promisee, the two must have shared some interest in the land independent of the covenant (succession of estate) 3) grantor-grantee, landlord-tenant, or mortgagor-mortgagee

Two implied promises in every land contract

1) Seller promises to provide marketable title 2) Seller promises not to make any false statements of material fact

1) Implied Covenant of Quiet Enjoyment. 2) How might landlord breach this?

1) T has right to quiet use and enjoyment without interference from L (residential & commercial) 2) Breach by wrongful eviction or breach by constructive eviction

Periodic Tenancy: 1) Definition; 2) Creation; 3) Termination

1) Tenancy for some fixed period that continues for succeeding period until either party gives notice of termination 2) "To T from month to month" or "To T, with rent payable on the first day of every month" or L elects to bind hold-over T for an additional term - May also arise by implication: 1) if land is leased with no mention of duration, but provision is made for the payment of rent at set intervals; 2) an oral term of years in violation of SOF; and 3) In residential lease, if L elects to hold over T who wrongfully stayed 3) Terminates by notice from one party at least equal to the length of the time period (such as one full month for a month-to-month tenancy); Exception: only one month's notice (six months' at common law) is required to terminate a year-to-year tenancy

Tenancy at Will: 1) Definition; 2) Creation; 3) Termination

1) Tenancy of no stated duration that lasts as long as both parties desire; 2) "To T for and during the pleasure of L" (L or T may terminate at any time) OR "To T for as many years as T desires" (only T may terminate); 3) Usually terminates after one party displays that the tenancy should come to an end. May also end by operation of law (e.g., death of a party, attempt to transfer interest)

Tenancy for Years: 1) Definition; 2) Creation; 3) Termination

1) Tenancy that lasts for some fixed period 2) "To T for X years" Must be in writing if greater than 1 year 3) Terminates at the end of the stated period without either party giving notice

Tenancy at Sufferance: 1) Definition; 2) Creation; 3) Termination

1) Tenant wrongfully holds over after the termination of the tenancy 2) T's lease expires but T continues to occupy premises 3) Terminates when landlord evict tenant or elects to hold tenant to another term

1) Sublease arises. 2) Landlord and sublease

1) When original tenant transfers less than his entire interest to T2. 2) Neither in privity of estate. Thus, sublessee is not personally liable to landlord for rent or performance of any covenants in main lease unless sublessee expressly assumed the covenants

1) For a parties promise to touch and concern, the promise must.. 2) Restrictive covenants touch and concern the land if.. 3) Affirmative covenants touch and concern the land if.. 4) Do covenants to pay money to be used in connections with land (such as homeowner's association fees) and covenants not to compete touch and concern the land?

1) affect the parties' legal relations as landowners and not simply as members of the community at large 2) they restrict the burdened parcel owner in her use of that parcel 3) they require the holder of the servient estate to do something that increases her obligations in connection with the land 4) Yes

1) Leasehold Definition. 2) What are the leasehold estates?

1) an estate in land, under which the tenant has present possessory interest in the leased premises and the landlord has a future interest (reversion). 2) There a 4 leasehold estates: tenancy for years; periodic tenancy; tenancy at will; tenancy at sufferance.

1) When are present covenants breached and when do statute of limitation begin to run? 2) What are the 3 present covenants

1) at delivery and at the the time of conveyance 2) 1. Covenant of seisin: grantor owns his estate; 2. Covenant of right to convey: grantor has the power to transfer (no temporary restraints); 3. Covenant against encumbrances: no servitudes/liens

The Implied Equitable Servitude (common scheme doctrine) 1) Under the common scheme doctrine, a court will 2) Elements of common scheme doctrine

1) imply a reciprocal negative servitude to hold the unrestricted lot holder to the promise 2) 1. when the sales began, the subdivider (A) had a general scheme of residential development which included Defendant's lot. 2. Defendant lot-holder (B) had actual, inquiry, or record notice of the promise contained in those prior deeds when they took.

1) An easement is appurtenant when: 2) How will you know when you've got an easement appurtenant?

1) it benefits its holder in his physical use or enjoyment of his own land. 2) Two parcels of land must be involved: a dominant tenement, which derives the benefit; and a servient tenement, which bears the burden

1) To pass title, deed must be: 2) Lawful execution requires:

1) lawfully executed and delivered. 2) writing signed by grantor, unambiguous description, identification of parties, words of intent to transfer No consideration needed

License: 1) Definition; 2) Creation 3) Revocation

1) mere privilege to enter another's land for narrow/delineated purpose 2) No writing required (Not subject to SOF) 3) freely revocable at the will of the licensor, unless estoppel applies to bar revocation (licensee invested substantial money or labor or both in reasonable reliance on the license's continuation)

1) Vertical Privity refers to the 2) It requires: 3) Only time vertical privity will be absent is when:

1) nexus between the successor in interest and the originally covenanting party 2) some non-hostile nexus 3) the successor acquired his interest through adverse possession

1) Transferability of Easement Appurtenant 2) Transferability of Easement in Gross

1) passes automatically with transfers of the dominant tenement, regardless of whether it is even mentioned in the conveyance; 2) not transferable unless it is for commercial purposes, then it is alienable

1) An equitable servitude is a: 2) Equitable servitude is accompanied by which form of relief?

1) promise that equity will enforce against successors of the burdened land regardless of whether it runs with the land at law, unless the successor is a bona fide purchaser (meaning a subsequent purchaser for value without notice of covenant) 2) Injunction

1) Marketable Title is 2) Common defects that render title unmarketable are: 3) When title must be marketable? 4) Remedy if title not marketable

1) title reasonably free from doubt and threat of litigation 2) (i) Defects in record chain of title - most often, adverse possession; (ii). Encumbrances (mortgages, liens, easements, restrictive covenants); (iii) Zoning violations 3) On the day of closing 4) Buyer must notify the seller that title is unmarketable and give the seller reasonable time to cure the defects.

Easements: 1) voluntary destruction of servient estate (e.g., tearing down a building to erect a new one): 2) Involuntary destruction of the servient estate (e.g., by fire or flood)

1) will no terminate an easement; 2) will extinguish the easement

1) Estoppel by Deed Doctrine Elements. 2) But watch out for?

1)(i) Grantor purports to convey to grantee realty they don't own (ii) Grantor later acquires title to property (iii) Title automatically vests in grantee (iiii) Grantor is estopped from denying validity of preacquisition of conveyance 2.2) BFP: early recording is outside chain of title

Termination of Equitable Servitude

1. Written release 2. Merger 3. Condemnation

Severance and Sale by a Joint Tenant

A joint tenant may sell or sell his interest during his lifetime. A voluntary conveyance by a joint tenant of their interest destroys the joint tenancy and the transferee takes as a tenant in common, however, other joint tenants remain with a joint tenancy if we have more than 2 joint tenants in the first place

Easement By Prescription

Adverse Possession (COAH) - Continuous and uninterrupted use for the given statute's period - Open and notorious use (that is, it's discoverable upon inspection - Actual use that need not be exclusive - Hostile use (meaning use without servient owner's consent)

Need to do Mortgages

And estates/future interests

Question A landowner gratuitously conveyed his interest in land to a friend by quitclaim deed. The friend promptly and properly recorded her deed. Six months later, the landowner conveyed his interest in the same land to an investor for $50,000 by warranty deed, which was promptly and properly recorded. As between the friend and the investor, who has the superior right to title to the land?

Answer: The friend, regardless of recording statute Reasoning: Because the friend recorded prior to the subsequent conveyance, she has the superior right to title regardless of the type of recording statute. A conveyance that is recorded can never be divested by a subsequent conveyance through operation of the recording statutes. By recording, the grantee gives constructive (or "record") notice to everyone.

What is the shelter rule?

Anyone who takes from a BFP will prevail against any interest the BFP would've prevailed against

Additional method for easement creation: Easement by express reservation

Arises when a grantor conveys title to land but reserves the right to continue to use the tract for special purposes

Fact pattern that calls for forced sale?

Blackacre is single building and does not render itself to physical division

Elements of Adverse Possession

COAH: Continuous, Open and notorious, Actual and exclusive, hostile

Creation of a negative easement

Can only be created expressly, by a writing signed by grantor

Severance of tenancy by the entirety

Can only be severed by death, divorce, mutual agreement, or execution by a joint creditor of both the spouses. On divorce, becomes tenancy in common

Mortgage Creation:

Debt (note) + lien in land to secure debt (Mortgage), and in writing (legal mortgage)

Scope of an easement

Determined by the terms of the grant or the conditions that created it. If there are no specific limitations in the grant, courts assume that an easement was intended to meet both present and future needs of the dominant tenant

Right of possession as tenants in common

Each co-tenant has the right to possess all portions of the property but has no right to exclusive possession of any part.

Negative Easement

Entitled holder to prevent landowner from doing something that would otherwise be permissible. Rare and are generally recognized in 4 categories: (LASS) light, air, support, and streamwater from an artificial flow), but minority of states also allow them for scenic view

Profit Definition. 2) Creation, alienation, and termination

Entitles holder to enter servient land & take some resource. 2) Same rules governing creation, alienation, and termination of easements are applicable to profits. In addition, a profit may be extinguished through surcharge (misuse that overly burdens the servient estate)

IF T breaches and remains on Premises, L can:

Evict (entitled to rent until T vacates); Continue relationship and sue for rent; No self-help

Is L liable to T for the wrongful acts of other Ts?

Generally, no. 2 exceptions: L has a duty to abate a nuisance on site; L must control common areas

Easement Defintition

Grant of nonpossessory property interest entitling holder to use/enjoyment of another's land

If a landlord consents to one transfer of sublease that violates a covenant against assignment or sublease:

He waives his right to avoid future transfers. The L may reserve the right to avoid future transfers, but such reservation must take place at the time of granting consent

How is a tenancy by the entirety created?

In states that recognize tenancy by the entirety, it arises presumptively in any conveyance to married partners unless the language of the grant clearly indicates otherwise

Landlord's Tort Liability: Common Law of Caveat Lessee

Landlord was under no duty to make premises safe, with five exceptions (CLAPS): 1) Common areas, 2) latent defects (hidden defects), 3) assumption of repairs, 4) public use rule (L who public space and who should know, because, of the significant nature of the defect and short length of lease, that a tenant will not repair, is liable for any defects on premises that caus einjury to member of the public) 5) short-term lease of furnished dwelling

When implied warranty of habitability is breached, what are T's options?

MRRR: 1) Move out and terminate lease; 2) repair and deduce; 3) Reduce rent or withhold rent until the court determines fair rental value 4) remain in possession, pay full rent, and affirmatively seek damages

Termination of Tenancy in Common

May be terminated by partition. Either by voluntary agreement, partition in kind, or forced sale. Courts prefer partition in kind

Creation of Tenancy in Common

Multiple grantees are presumed to take as tenants in common.

Creation of Easement

PING: 1) Prescription: adverse possession (continuous, open and notorious, actual, and hostile), 2) Implication: preexisting use/quasi-easement (created by operation of law), 3) Necessity: implied when landowner conveys part of her land with no way out except for part of grantors remaining land 4) Grant: signed writing (deed of easement) (unless outside of SOF, so brief)

Statutory Special Warranty Deed

Provided for by statute in many states, if not specific in nature of deed, special warranty deed presumed Promises: 1. Grantor promises that he has not conveyed this estate to anyone other than grantee. 2. Grantor promises that the estate is free from encumbrances made BY the grantor.

Implied Warranty of Habitability

Requirement for residential leases only that provides for a nonwaivable warranty that premises must be fit for basic human habitation (bear bone essentials of human dwelling)

What is a Chain of Title?

Sequence of recorded docs capable of giving record notice to later takers

Ameliorative Waste: narrow exception:

T permitted to make changes whenever there is a long term tenant and changes are reasonable because they reflect changes to neighborhood overall

One adverse possessor may ___ on to his time with the land his predecessor's time, so long as there is ___ between the possessors. ____ is satisfied by any _______, such as a K, deed, or will

Tack; Privity; Privity; non-hostile nexus

Effect of one concurrent owner's encumbering the property?

Tenant in common may encumber her interest (ex: mortgage or judgment lie), but may not encumber interest of other co-tenants. The mortgagee can foreclose only on the mortgaging co-tenant's interest.

Distinguishing Characteristics of Joint Tenancy

The right of survivorship. So when one Joint Tenant dies, the deceased's share automatically goes to surviving tenant

Affirmative Easement

The right to go on and do something on servient land

Effect of one joint tenant's murdering another

Under UPC and modern statutes, when a beneficiary intentionally and unlawfully kills a joint tenant, any joint property is transformed into a tenancy in common

Severance of Joint Tenancy

Under certain circumstances, a joint tenancy is severed and tenancy in common results: SAP: Sale And Partition

Doctrine of Equitable Conversion

Under this common law doctrine, once the contract is signed equity treats the property as buyer's land and therefore buyer bears the risk of loss. ONLY APPLIES IF SELLER IS NOT AT FAULT.

Types of waste and Tenants in common

Voluntary waste is willful destruction; permissive waste is neglect; Ameliorative waste is waste that increases value (still liable)

Creation of Equitable Servitude

WITNES: 1) Writing 2) Intent (original parties intended that the promise would be enforceable by and against successors) 3) Touch/Concern (promise affects parties as landowners) 4) Notice (record, inquiry, or actual); 5) for Equitable Servitude

Is a Joint Tenancy with Right of Survivorship Alienable? Is it Devisable? Is it descendable?

Yes, may sell, gift or otherwise transfer during lifetime, and may do this without the consent or knowledge of other tenants. No, may not be passed by will, any attempt to pass by will is void. No, may not pass to heirs through statutes of intestacy

An easement is in gross if it. 2) Common examples

confers upon its holder only some personal or pecuniary advantage that is not related to their use or enjoyment of their land. 2) right to place a billboard on another's lot; right to swim in another's pond; utility company's right to law power lines on another's lot

Fact patter that calls for partition in kind?

if blackacre is sprawling acreage and renders itself to physical division

Termination of Easement: a long period of nonuse is sufficient to terminate an easement if:

it is accompanied by other evidence of intent to abandon the easement

What is a Wild Deed?

recorded deed that isn't connected to chain of title (same as never recording deed, thus, cannot give constructive notice)

A covenant runs with the land if:

the original parties to the lease intend so and if the covenant "touches and concerns" the land