Property Law (shareable)

inter-vivos

gift given in your lifetime (completed gift)

Causa-mortis

a gift with expectation of death; if owner recovers they can get it back. (impending death or returned)

What are the terms for a completed gift (3)

1. intent

2. delivery

3. acceptance

Revocable gifts

gift not completed

irrevocable gifts

gift that is completed

revocable trusts

better when receiver of gift is not fully trustworthy

a flexible estate planning tool created during your lifetime that allows you to manage assets, avoid probate, and maintain privacy, while retaining the ability to modify or cancel it.

irrevocable trusts

a legal arrangement where the grantor permanently transfers assets to a trustee for beneficiaries, forfeiting ownership and control. It cannot be changed or terminated without beneficiary consent or court approval

Fee simple absolute

owning in FSA means you own everything on the property with zero conditions

only giving someone the rts to use the property does not revoke your FSA of the property.

Life estate

owning it, rts to use property for life

Issue: tenant owns present interest in using the property - when lease ends present interest reverts (reversion) back to the landlord

present, possessory interest in real property that lasts for the lifetime

deeds

you can write a deed @ anytime, anywhere - should be detailed to avoid legal issues later

ex. I, x, deed my interest in property to A for my life, remainder to B

Real property

“dirt and up”/ land

personal property

everything on the “real property”/personally owned items

Vested?

a fixed, absolute right to a benefit, such as pension, stock options, or property, that cannot be taken away - if vested, it cannot be taken away (no limited duration)

Adverse possession

applies to real property ONLY

involves a trespasser and record owner

Trespasser can adversely possess property to reward the utilization of the property

Doctrine of Waste

preventing temporary holders (like tenants or life estate holders) from damaging, neglecting, or altering property in a way that reduces its value for future owners

did the tenants pass normal wear and tear of the property?

Fee simple

allow the original owner to set restrictions, such as requiring the property to be used only for residential purposes (give everything, all interest)

An umbrella term for total ownership. It can include unrestricted forms (absolute) or restricted forms (defeasible).

Grantor vs. Grantee

Grantor: A gives to B - A is grantor

Grantee: B is the grantee

Devise

testamentary gift of real or personal property made through a will, transferring ownership upon the owner's death (cause-mortis)

Signifies land transaction (real property)

Bequest

Personal property transaction

Ex: Special bequest to give x to my brother, A

Heirs

where the law says property goes (if no will) or explicitly stated in will

determinable

determinable upon a certain event - was not give w/o expectations

conditions

condition subsequent

if something happens it can go back to the grantor

condition precedent

a condition that has to happen before transaction

future interest

legal, non-possessory right to property that will or may become a present, possessory estate at a future date.

present interest

the immediate, unrestricted right to use, possess, or enjoy property or income.

Rt to re-enter

reversion right

Tenants in common

the only thing that tenants have in common/share equally is possession; lacks rt of survivorship - if a owner dies, their share passes to their heirs via a will, not automatically to the surviving owners

Concurrent ownership

owning 1 piece of property @ the same time as someone else (Ex. owning a beach house with a friend)

separate interests

Sever relationship (ex: concurrent ownership)

to end the agreement (can be done in secret)

what type of relaitonship if no rts of survivorship?

No rts. of survivorship —> tenancy in common

straw man

Property owner transfers title to a third party, who then transfers it back to the original owner and another person as joint tenants.

Historically satisfied the "four unities" required for joint tenancy (time, title, interest, possession)

unjust enrichment

ex: if you murder the concurrent owner with JT, you unjustly tried to enrich yourself with their property

Tenancy by entirities

marries @ the time of the transaction (permission is required to sell, transfer, etc.)

mortgage leins

only the borrower(s) listed on this are considered creditworthy in the transaction. If only Person A is named on the it, the mortgage company will underwrite and issue the mortgage based solely on Person A's salary and credit profile — Person B is not factored into the credit evaluation, as they hold no liability under the it

Outster concept

Ouster occurs when one co-tenant wrongfully excludes another co-tenant from the property — for example, if B changed the locks and physically prevented A from returning. That would trigger B's obligation to pay A rent for the period of exclusion. Without an actual, wrongful exclusion, there is no ouster

A leaves on their own—> no ouster, B owes no rent

B locks A out of refuses A entry —> Ouster, B, owes rent

Accountings

includes utilities

potential rt of contribution if 1 owner installs (ex. pool) that raises water bill. Cts may accept rt to contribution action

what do Landlords base rent price off of?

fmv: Fair market value

ouster: don’t have to give rent unless ouster

Costs (who bears it?)

Mortgages, taxes all JTs are expected to contribute (rt of contribution)

Repairs/improvements: does not need contribution from other owners (ex. adding a fence/repairing a fence)

waste

doctrine of waste - the possessor must maintain the property in a reasonably similar condition and cannot make permanent changes — even improvements — without the consent of all interested parties

applies to: Life tenants vs. remainder holders, Co-tenants (e.g., Joint Tenants, Tenants in Common), and Landlord & Tenant relationships

partition in kind

The court divides the property into distinct parcels, giving each owner a specific, smaller portion

Owners keep their share of the property and avoid forced sales

parition by sale

The court orders the property to be sold (often through a public auction or private sale), and the net proceeds are divided based on ownership interest

Provides a quick, clean financial break and is the only option when physical division is impossible

Tenant must show a possessory right to obtain ct order

4 unities of Joint Tenancy

Time - All joint tenants must acquire their interests at the exact same moment

Title - All joint tenants must take title through the same deed, will, or legal document.

Possession - JT have right to the whole and right to possess the whole time

Interest - Tenants both have a share of ownership

A and B are _____ . B can sell, transfer, dispose of their share w/o permission from A.

Upon one owner’s death, their share passes to their heirs or through their will, not to the surviving owner. JT or TIC?

Tenants in Common (TIC)

Joint Tenancy (JT)

requires tenants to meet 4 unities of JT

Always has rts of survivorship (no rts of surv. —> functions as TIC)

Upon one owner’s death, their share automatically passes to the surviving owner.

Typically 50/50 split between the concurrent owners

Ed deeds 50% of house to A during Ed’s life. What type of tenancy is this?

TIC between Ed and A concurrent ownership

Ed leaves 50% of house to B in will. What tenancy do we have?

TIC between A and B b/c A received the property @ a different time —> no unity of time —> no JT

Intestate

Died w/o a will - left no direction for family to go in —> Law says if you die, it will go to heirs (Varies by state/1st children 2nd parents, siblings)

Testate

had valid will @ time of death. direction given

separate property

property you come into the marriage with. anything you owned before entering the marriage, unless you give the title

Commingle

adding person to title/acc./trust after

occurs when separate, non-marital assets (like inheritance or pre-marital savings) are mixed with marital property

Marital property

purchases made after marriage, you own it OR if title is given - title isn’t required to have both people on it.

elective share

a legal right in "separate property" states allowing a surviving spouse to claim a fixed percentage (often one-third to 40%) of a deceased spouse's estate, preventing total disinheritance

Traditionally one-third of the estate.

inherited property

treated as separate property bc inheritance is typically explicitly states in will/trust

community property

a legal regime in nine U.S. states where assets and debts acquired during marriage are owned 50/50 by both spouses, regardless of who earned them.

free holder

an individual or entity that owns a property and the land it stands on outright, in "fee simple," for an indefinite period

hold the "title absolute" to the property

non-freeholder

not a permenant relationship with LL (landlord)

represents a legal interest in real property that grants possession but not ownership, typically established via a lease agreement.

Unlike freehold estates, these are for a limited, defined duration. The tenant (lessee) has possession, while the landlord (lessor) retains ownership

Covenant of Quiet Enjoyement

Leasee doesn’t own it, but does own the right to peacefully enjoy it. Leasor can’t just show up and use the property

What are the 4 types of leases

At-will tenancy - indefinite; less defined - “I will let you stay here..”

Periodic Tenancy - you can lease this prop. monthly/weekly; more defined

Terms of Years - defined w/o automatic renewal; provides clear ends

Tenancy of Sufferance - tenant is “holding over” their lease; staying without LL’s consent until eviction

Holdover tenant (sufferance)

A tenant continues to occupy a property after their lease has expired without the landlord's consent. The tenant, often called a "holdover tenant," remains legally allowed on the premises only until the landlord starts eviction.

Methods to acquire property

creation

capture

gift

found

adverse possession

Breach

Default

B - break/fail obligation in contract

D - back out of the contract - “they defaulted the lease” —> ex. didn’t pay rent

What is a holdover provision?

in contract, if tenant holds over, then their rent will increase by $200 monthly.

Why can’t landlords just kick someone out? How do notices play a part?

Law prefers 30 days notice

example from class: if LL accepts ½ rent b/c that is all tenant has, grace period to pay the rest extends.

If other half isn’t paid by the 1st of the following month, then LL can’t file a notice of eviction

If LL did not accept first half of rent —> landlord could evict

Abandonment during a lease? Issue?

can abandon w/ no rent paid or abandon and still fulfill obligation to pay rent

issue: no one is there to take care of/use the property - if no communication, lease should include abandonment provision that gives LL the rt. to move someone else in.

Duty to Mitigate

LL has a duty to find new tenant @ some point (especially if abandoned)

Ct. says LL must make “reasonable efforts” —> better outcome for society

T1 abandones property —> LL re-rents to T2 —> T2 moves in —> 2 days later, T1 is back

What does T2 have the rt to do?

T2 has the rt/obligation to kick T1 out b/c its a trespass onto T2s property

Possible issue: If LL is proven negligent w/ T1 abandonment, there could be culpability

Remedies upon default/breach (3)

1. sue for damages

2. security deposit

3. eviction

LL can do all 3

Where should a security deposit be kept?

(in most states) LL must have separate bank acc. for security deposits & tenant must know where it is stored.

$ cannot be commingled —> if it is, tenant can be refunded

Constructive eviction

when a landlord's actions, or failure to act, render a rental property uninhabitable or substantially interfere with its use, forcing the tenant to vacate

(water, gas, AC, wifi, utilities, etc.)

Implied Warranty of Habitability (IWH)

legal doctrine requiring landlords to maintain residential rental properties in a safe, sanitary, and livable condition, complying with housing codes

Important note: Commercial spaces have different standards; IWH tells us it applied to residential.

Premises Liability

general liability held by property owners

Tortious Act

LL can be liable in civil ct. (Tort - any civil harm)

Important questions: Did they know? Should they have known?

Assignment

LL—> T1 —> T2

Entire rts/obligations/responsibilities must be passed to T2

Example from class: TI, “I assigned to T2, but gave a discount on rent…” = unacceptable b/c full obligations must be passed

lease agreement should include provision of whether LL allows assignments or not

Sublease

LL —> T1 & T2 subleases portion of property from LL (Ex. a room in a house)

Privity of Contract

Binding only between the original parties to the agreement (landlord and original tenant).

It lasts for the entire lease term, even if the tenant assigns the lease, unless the landlord releases the original tenant.

unjust enrichment claim

equitable legal claim preventing a party from retaining benefits—money, property, or services—unfairly at another's expense.

Typically applies when no formal contract exists or a contract is invalid, requiring the defendant to return the value of the benefit, often via restitutio

Fair Housing Act

Landlords cannot discriminate based on race, gender, religion, or sexual orientation

14th Amendment

Equal Protection Clause

Privity of Estate

Exists between the current landlord and the current tenant (or assignee) in possession of the property.

Applies to covenants that "touch and concern" the land (e.g., payment of rent, repairs)

(retail assignment example from class) What if a jewelry store wants to be assigned to a store in a strip mall, but there is already a jewelry store next door? (Requirements for commercial assignment)

Consent - LL must consent to assign

Commercially reasonable? Unreasonable: Could upset competition/other stores in strip mall

Mixed use/retail: Tenants and customers prefer mixed use

Listing is an ____ to make an offer

invitation

general contract rules (3)

offer - buyer gives offer

acceptance - seller accepts or not

consideration - value for value

Revocation/counter offer

buyer makes offer —> seller adjusts terms/price (counter offer) —> buyer accepts —> binding offer

Lapse

example from class: 3/31 buyer makes offer with 24 hour window to accept

4/2 seller accepts past 24 hours = it lapsed (not binding)

statute of frauds - how to make offer/acceptance valid (4)

1. fixed amount/clear amount

2. purchaser and seller clear - who’s will be liable

3. description of property clear

4. signed by parties to be charged

from class: MUST BE WRITTEN (even on a napkin would work)

Deeds (Title)

must be handed over to buyer - if you give a deed to X, X has a title in that property they are the clear owner.

received a deed = acceptance —> receiver has title/ownership

Dual Agency

when one real estate agent or brokerage represents both the buyer and seller in the same transaction

Phases of a Contract (3)

1. Precontract period: names of parties, description of land, price, date money is due

2. Executory period: signing contract —> everything negotiated MUST be executed (ex. title search)

3. Closing phase: closing date “time of the essence.”

Phases of Contract - Precontract period subpoints

1a. risk of loss: risk until the deal is completely closed (what happens in the event of ex. house being destroyed before closing)

1b. if closing date is breached, buyer can go back b/c time is of the essence

1c. loan contingencies: who’s funding the transaction —> pre-approved by bank before precontract period (ex. 10 days to get approved by bank) if not approved, buyer has no funding from bank —> buyer owns nothing to seller

1d. inspection periods: 7-10 days (ex. cosmetic, structural, pests, etc.)

1e. method of payment

1f. closing costs: x pays for title insurance, y pays closing fee

1g. closing attorney: must treat seller fairly

marketable title

must own 100% to give to the buyer

earnest money

a "good faith" deposit made by a homebuyer to a seller, typically 1% – 3% of the purchase price, demonstrating serious intent to purchase

“penalty for buyer walking away.”

Some say an agency can hold money if there’s a dispute between buyer/seller —> gives agency a lot of control —> can cause seller to have to pursue litigation to get money out of escrow

K (signed contract) —>

title search —> seller —> (deed/title transfer) buyer —> recording of deeds @ registrar of deeds/recorder

role of registrar of deeds/recorder

checks for liens, mortgages, any unpaid interest

they answer the question of can we issue clean title with no encumbrances?

warrant meaning

“promise” “I warrant…”

Quit Claim deed

“idk for sure about other interests in this property…”

not warranting anything BUT what you own (ex. I warrant you all my interest in x property [which can be only half of the property])

Limited warranty

“since i’ve owned x property, there have been no other interests/encumbrances”

warranting a title that is free of encumbrances during their ownership.

General warranty

“I guarantee no other interests”

warranting a title to this property with no encumbrances EVER.

implied warranty

quiet enjoyment/Guarantees that the seller legally owns the product and has the right to sell it

Land K/seller financing & Issue

over x amount of time —> deed given

why? buyer does this when they can’t loan from bank/family —> seller carries financing/acts likea lease for the buyer

issue: seller has lien on property

Traditional 3rd party loan and Issue

buyer gives money to seller—> seller gives deed to buyer

buyer loans from the bank (if credit worthy - buyer gives bank promissory note) —> bank puts lien/mortgage on buyers property

Issue: buyer owes bank under promissory note (common 30 year mortgage)

• tenant/buyer doesn’t pay —> bank owns it technically