Property

Adverse Possession

Adverse possession requires possession that is: (1) open and notorious, (2) actual and exclusive, (3) hostile or adverse, (4) continuous, (5) for the statutory period

Open and Notorious - if it would put a reasonable person on notice that it was occurring

Actual and exclusive - if only the adverse possessor is using it

Hostile or adverse - lack of owner's permission or consent

Continuous - constant use for the purpose and in the manner reasonably and normally intended, concurrent possessor would tack

For the statutory period

Fee Simple Absolute

The maximum possible estate or right of ownership of real property, continuing forever.

Fee Simple Determinable (So long as, while, during, until)

A fee simple determinable grants the estate in fee simple followed by a possibility of reverter in the grantor once a designated event occurs

Fee Simple Subject to Condition Subsequent (but if, provided that, on the condition that)

A fee simple subject to condition subsequent grants the estate in fee simple followed by a right of re-entry in the grantor once a designated event occurs, and must be affirmatively exercised

Fee Simple Subject to Executory Interest (but if, provided that, on the condition that)

A fee simple subject to executory interest grants the estate in fee simple followed by an estate to a third party once a designated event occurs.

Life estate (For life)

A life estate grants the estate for the grantee's lifetime and is followed by either a reversion to the grantor or remainder to a third party.

Life tenant is responsible for paying property taxes and the interest on the mortgages, so long as there is either income from the land or to the extent of the land's reasonable value

Remainders

Possession to a third party after a life estate is a remainder. Remainders may be vested or contingent.

Vested remainders have an ascertainable grantee with no condition precedent

Contingent remainders require the remainderman to fulfil a condition precedent. Vests once condition precedent is satisfied. If failed to vest before or at the time the prior estate ended, it converts to a springing executory interest.

Doctrine of Merger

If the same person acquired both the present and all future estates, they merge into fee title. If the duration of the estates differ, there is no merger.

Class Gifts

A gift to a group of persons having a common characteristic; the share of each member of the class is determined by the number of persons in that class

Rule of convenience provides that the class closes when some member of the class can call for distribution of her share, absent a contrary intention in the instrument to include all member of a class whenever born.

The rule of convenience is to provide certainty and to avoid the rule against perpetuities.

RAP

A future interest is void if there's any possibility that it could vest more than 21 years after the end of all relevant lives in being when the interest is created. At common law, an interest that violated the RAP would simply be deleted from the conveyance.

Cy pres

Court may rewrite the conveyance to get as close as possible to the grantor's intent while complying with the RAP.

RAP applies to vested remainders subject to open, contingent remainder, executory interest, and powers of appointment.

Concurrent Estates, TIC

A tenancy in common (TIC) is the default form. Under a TIC, each co-tenant has equal right to possess the whole of the property, but only a lesser divided interest in the property. Each co-tenant may devise her interest in the property or it will pass through intestate succession because a TIC has no right of survivorship.

Concurrent Estates Joint Tenancy, TIPP

Joint tenancies requires 4 unities: time, title, interest, and possession

Time - Interests must be acquired at the same time

Title - Title must vest in the same instrument

Interest - Tenants must have the same type and duration of interest

Possession - Each have the right to possess and use the entire property.

Joint tenancies may be severed by unilateral intervivos transfer, partition, or agreement by the tenants, resulting in a TIC. Lien theory mortgage does not sever JT and survivor takes property free of mortgage, but the minority title theory does sever and allows the lender to hold a 1/2 interest by the mortgagor-tenant.

Concurrent Estates, Tenancy by the entirety

Joint tenancy between spouses, requires the same 4 unities and unity of marriage.

Marital tenants have no right of partition and JT cannot be severed by unilateral act of one tenant

Tenancy by the entirety may be severed by: (1) death, (2) mutual written agreement, (3) divorce, or (4) execution by a joint creditor

Co-Tenants Rights, Possession

Co-tenants have a right to possess all of the property, but a co-tenant out of possession cannot bring a possessory action that a possessing co-tenant owes them rent, unless the possessing co-tenant has caused an ouster

Co-Tenants Rights, Rent and Profits

Co-tenant in possession has the right to retain profits gained by her use of the property, there is no need to share those profits with other co-tenants or reimburse them for rent absent an agreement, or if profits are from uses that deplete the property's value

Co-tenant out of possession has the right to their pro rata share in rents and profits from third parties in all circumstances

Co-Tenant Rights, Losses and Expenses

Co-tenant who pays more than the pro rata share for necessary repairs is entitled to contribution from the other co-tenants in an action for accounting or partition. There is no right of contribution for cost of improvements, and they are not set off in an accounting.

Courts permit an independent action for contribution if the repairs are necessary and the repairing co-tenant gives notice.

Co-Tenant Rights, Taxes and Mortgages

Co-tenants have a duty to pay their share of taxes and payments due on mortgages on the property. Co-tenant not in possession, but pays these expenses is entitled to contribution from the other co-tenants. Co-tenant in sole possession who pays the taxes and mortgage is only entitled to reimbursement in the amount exceeding the fair rental value of the property

Co-Tenant Rights, Partition

Partitions is an equitable remedy to divide the property, typically in kind dividing the physical property. If partition in kind is not feasible, court may force partition by sale and divide the proceeds

Leases, Term of Years

Term of years lease has a set start and end date, and automatically end on the termination date, so there is no renewal absent exercise of a renewal clause. The unjustified failure to pay rent subjects a tenant to the obligation to pay rent to the end of the term, absent any defenses

Leases, Periodic Tenancy

Periodic tenancy continues from year to year, or successive fractions. It automatically renews until it is terminated.

Periodic tenancy may only be terminated by notice, usually 30 days, but may be longer if the period is for a longer time. If tenant fails to properly terminate a periodic tenancy, they will owe rent, unless they can argue there has been a breach of express or implied covenants

Leases, Tenancy at Sufferance, Holdover

Tenancy at sufferance results from a holdover tenant, who stays beyond the term of the lease by consent of the landlord.

Landlord may sue for eviction or bind tenant to a new tenancy. Accepting rent creates a periodic tenancy with the terms of the prior lease.

Tenancy can be terminated by the landlord on 30 days' oral or written notice.

If the tenant wrongfully terminates the lease and breaches their duty to pay rent, the landlord has a duty to mitigate by attempting to reasonably re-let the premises. The landlord's failure to mitigate is a defense to the nonpayment of rent

Duties of a Tenant

Tenant has a duty to: (1) pay rent unless an exception applies, (2) avoid waste, (3) residential tenant may be required to notify landlord of necessary repairs.

Duties of a Landlord

Landlord has a duty to: (1) deliver possession, (2) covenant of quiet enjoyment and non-disturbance, and (3) the landlord's implied warranty of habitability

Duties of a Landlord, Covenant of Quiet Enjoyment

The implied covenant of quiet enjoyment can be breached by (1) actual or (2) partial physical eviction, or (3) by constructive eviction

Actual and partial eviction involve the landlord physically excluding the tenant from part or all of the premises

Constructive Eviction requires that the landlord breach a duty set out in the lease and the breach substantially deprived the tenant of use and enjoyment of the premises. Landlord has an obligation to repair or otherwise to remediate the eviction.

Prior to invoking remedies, tenant must give landlord notice and a reasonable opportunity to repair. Remedies include: moving out and terminating the lease if done timely.

Duties of a Landlord, Implied Warranty of Habitability

The implied warranty of habitability only applies to residential leases. This warranty provides that the residence will be suitable for human habitation.

If the warranty of habitability is breached, the tenant must notify the landlord of the issues and can: (1) move out and terminate the lease, or (2) make repairs and offset the cost against their rent or (3) seek damages against the landlord.

Assignments

An assignment assigns the entire leasehold estate for the remaining term. Both landlord and tenant can assign their interest without consent of the other, unless the expressly forbids it.

Landlord can collect rent from tenant who is in privity of contract or privity of estate with landlord

Sublease

Sublease is a partial transfer where tenant retains part of the premise or any of the remaining term. Sublessee is not liable to the landlord for rent, but if the rent is not paid, landlord can terminate the sublease and evict the sublessee

Express Covenants

An express covenant runs with the land when: (1) a writing, (2) the original parties intended future takers to be bound, (3) successor must have notice of the covenant, (4) there must be horizontal and vertical privity between the parties, and (5) the covenant must touch and concern the land.

Notice requires actual, constructive, inquiry

Horizontal privity - original parties share a mutual or simultaneous interest in the property at the time the covenant is made.

Vertical privity - refers to relationship between the original party and the successors to the property interest, requires that there be a non-hostile nexus between the two.

Express Covenants, Breach

Traditionally, express covenants are independent of each other and if breached, other than the covenant to pay rent, the breaching party may owe damages but the non-breaching party is not excused from performance.

Modernly, all express covenants are dependent. If the breach of a landlord's express covenant is a material breach, that may be ground for the tenant to terminate the lease and claim damages

Express Covenants, Enforcement

Instead of damages, landlord or tenant may sue for specific performance or injunction by showing: (1) intent of the original parties for the restriction to be enforced, (2) notice and (3) touch and concern the land

Land Sale K, Formation, broker + SOF

Real Estate Broker

Statute of fraud requires land sale contracts be in writing, unless two of the following apply: (1) part performance, (2) full performance, (3) detrimental reliance and (4) admission

Land Sale K, Performance, (1) Marketable Title

Marketable title is an implied covenant that title is free from defects that create an unreasonable risk of litigation

Defects making title unmarketable include: (1) future interest, (2) violation of zoning ordinance, (3) encumbrance, (4) physical defect, (5) title by adverse possessor has not been quieted

Remedies include: (1) recission with recovery of costs and payments (2) suing for breach, (3) or specific performance with abatement or purchase price

Land Sale K, Performance (2.) Time is of the Essence

Time is of the essence is not presumed and must be stated in the general contract. Parties must perform within reasonable time and late performance can trigger incidental damages

Land Sale K, Performance (3) Disclosures

Residential seller has duty to disclose material defects

Land Sale K, Remedies, Damages

Damages are calculated by the contract price less the market value

Specific performance and abatement of the purchase price if available

Land Sale K, Equitable Conversion

Equitable conversion converts the seller's interest to the personal property once the contract is assigned, giving buyer the real property interest and placing the risk on buyer if the property is already destroyed

Land Sale K, Options and Rights of First Appeal

Option requires one party acquires your like to the right to purchase property in exchange for declaration.

Delivery and Recording of Deed, Deed

Deed requires: (1) writing with essential information (2) intent to transfer the property and (3) delivery of the deed. No consideration is required

Delivery and Recording of Deed, Recording Act

Recording acts applies to nearly all interests in land to protect a bona fide purchaser. Types of statuses: (1) notice, (2) race, and (3) race-notice

Shelter rule requires one who take title from BFP is protected by that status

Delivery and Recording of Deed, Types of Deed, General

General warranty requires: There are three present covenants: the covenants of (1) seisin (title and possession); (2) right to convey the property; and (3) against encumbrances (other than those recorded prior and appearing on the preliminary title report). There are also three future covenants: (4) quiet enjoyment (grantee will not be disturbed in possession by a lawful claim of title); (5) warranty (grantor agrees to defend grantee's title and compensate the grantee for loss as a result of an undisclosed superior title); and (6) further assurances (to perform whatever further acts are necessary to perfect title in the grantee).

Delivery and Recording of Deed, Types of Deed, special warranty

Special warranty claims require: (1) similar six implied covenants, (2) protects against defects only if they arose during the time the grantor had title

Delivery and Recording of Deed, Types of Deed, Quitclaim

A quitclaim deed conveys only what the seller has, but does not affect the implied warranty of marketable title in a real estate contract

Conveyance, By will

Real property can pass by a specific devise or residuary clause, if a person dies without a valid will, his property passes by intestacy, if a person dies without heirs, property escheats to the state

Ademption where a specific devise fails if the testator does not own the property at the time of his death

Lapse when the beneficiary dies before the testator, all states have anti-lapse statutes.

Conveyance, By Trust

A valid private trust requires: (1) intent to make a trust, (2) identifiable benficiaries, (3) res, (4) valid purpose.

Can be created during life or death and charitable trusts

Restraints on Alienation

restraints on legal interests generally void as against public policy, but permissible if the restraint is limited in time and prejudice

Mortgages and Security, Mortgage alternatives

Mortgage alternatives:

(1) deed of trust - borrower delivers note to third party trustee as security for payment to lender

(2) installment land k, seller retains title until the buyer makes the final payment

(3) absolute deed, a deed free of all liens and encumbrance, if an obligation is created prior to or contemporaneously with the deed transfer. The grantor may prove that the transfer is a disguised mortgage.

(4) Conditional sale and repurchase, can create disguised mortgage depending on the items

Mortgages and Security, Transfer

By mortgagor - will not release obligation without a release or modification by the lender, consider due on sale clause

Transferee who assumes the mortgage is liable but mortgagor also remains liable. Transferee who takes subject to the mortgage not liable

By mortgagee - does not affect liability of mortgagor

Pre-foreclosure

depends on whether lien, title, or intermediate title theory

equity of redemption, prior to foreclosing, right to pay debt with interest to avoid foreclosure

Foreclosure

Sale after material default and notice, sue the borrower on the note or foreclose on the mortgage.

priorities, foreclosure destroys junior interests

Discharge

prepayment - presumption in favor of permitting mortgagor's prepayment

merger, when a mortgagee's interest and the mortgagor's interest are acquired by the same person, court treats the mortgage as one having merged into fee ownership

Easement

An easement is the right to enter onto and use land for a particular purpose, such as travel over it, and thus for ingress (entrance) and egress (exit).

Express Easement

·An express easement is a direct grant of the easement, preferably with a deed, since the Statute of Frauds requires easements, which are an interest in land, to be evidenced by a writing by the grantor—the party to be charged

Easement by Reservation

· an easement by reservation, the Grantor reserves an easement for herself as part of the conveyance of the property to another person

Easement by implication

An easement by implication arises if there was a prior use over a period of time amounting to consent

arises on a servient parcel when prior to division of the tract, the owner used on part of the land to benefit another part and the parties intended to conintue the use after severance. Use must be continuous, apparent or known and reasonably necessary to dominant parcel's use and enjoyment

Easement by Necessity

generally created only when property is virtually useless, without the benefit of an easement across neighboring property.; dominant and servient estates must have been under common ownership in the past

Easement by Prescription

An easement acquired by continuous, actual, open, and hostile use of the property for the period of time prescribed by state law.

Easement by estoppel

permissive use granted but later revoked, good-faith, reasonable detrimental reliance may allow the easement to be enforced through estoppel

Transfer

easement appurtenant is transferred with the land to which it related, most courts now allow transfer of an easement in gross if for commercial use or parties intend to tfer

Scope

the nature of allowable use depends upon the type of easement and use

Termination

Release - written release from the easement holder

Merger - owner of the dominant or servient estate acquires title to the other estate

Severance - an attempt to transfer an appurtenant easement separate form the land it benefits terminates the easement

Abandonment - mere nonuse is insufficient without conduct or words showing clear intent to relinquish the easement

Necessity end - an easement by necessity will end when the necessity ends

Prescription - if the holder fails to protect against a trespasser for the statutory period

Estoppel - if statement or conduct indicating abandonment are revoked after reasonable detrimental reliance by the servient estate, the holder may be estopped from reclaiming

Easement Appurtenant

is one where the holder of one parcel—the dominant tenement—holds and is benefited by the easement burdening a different parcel over which it runs—the servient tenement

An easement appurtenant automatically transfers with the transfer of the dominant estate

Easement in Gross

the holder is not the owner of another parcel, but just has rights of access irrespective of their ownership of nearby or adjacent property

An easement in gross does not transfer between successive owners of the easement unless it is for commercial purposes.

Real Covenants

Real covenants are covenants that run with the land at law. When damages sought for breach, requires: (1) a writing, (2) the original parties intended future takers to be bound, (3) successor must have notice of the covenant, (4) there must be horizontal and vertical privity between the parties, and (5) the covenant must touch and concern the land.

Notice requires actual, constructive, inquiry

Horizontal privity - original parties share a mutual or simultaneous interest in the property at the time the covenant is made.

Vertical privity - refers to relationship between the original party and the successors to the property interest, requires that there be a non-hostile nexus between the two.

Equitable Servitudes

When injunctive relief is sought to enforce a covenant, requires: (1) writing, (2) intent for restriction to be enforceable, (3) touch and concern, (4) notice

Implied reciprocal servitude

Implied from common plan; remedy is an injunction;

requires: (1) Intent to create a servitude on all plots

(2) The servitude must be negative (i.e., a promise to refrain from doing something)

(3) Notice (actual, constructive, or inquiry) by the party against whom enforcement is sought

Defenses to equitable servitudes

changed circumstances; laches; unclean hands; acquiescence; estoppel

Transfers of Covenant, etc.

Covenants, equitable servitudes, implied reciprocal servitudes transfer with the real property interest

Termination of Covenants

Covenants, like easements, can be terminated in a number of ways, including: release, merger, abandonment, waiver, estoppel, condemnation, sale to BFP who can assert the protection of a recording act

Also may be modified or terminated with the consent of all interested parties, or even without unanimous consent. This is especially true in the context of common interest communities.

Common-interest ownership communities, types

3 main types of common-interest ownership communities are:

1) residential communities, where property owners are required to belong and pay dues to association or board,

2) condominiums, where individual units are owned outright but common areas are owned collectively as tenants in common,

3) cooperatives, where property is owned by corporation made up of residents/shareholders that leases individual units to shareholders (residents)

Common-interest ownership communities, Governance

Declaration and governing documents determine the rights and obligations of the members

Association is typically corporations, but may also be a trust, partnership, or unincorporated association manages affairs and enforces covenants and easements

Board elected by members of the association, day to day control over maintenance

Developer generally responsible for creating the association and transferring common property to it

Common-interest ownership communities, Power of the community

Community may levy assessments and charge fee, manage, acquire, and improve common property, adopt rules governing use of property, ,litigate in its own name

Common-interest ownership communities, Duties Associated with Community

Duties of the community to members - use ordinary care and prudence, treat members fairly, act reasonable

Duties of directors and officers of an association require good faith, use ordinary care and prudence

Liability of members and assocaition torts - members are not jointly and severally liable for torts that occur on or caused by commonly held property

Fixtures

A fixture is something affixed to the property such that removal would cause substantial damage to the property.

tenant cannot generally remove a fixture, absent a written agreement to the contrary. However, if the fixture is a trade fixture—equipment used in the tenant's trade or business—it can be removed without agreement

Zoning, Authority

Government regulation of land use subject to variance

Federal - no specific consitutional authority for Congress to pass zoning laws

State - falls within a state's power to enact laws for the general welfare, mostly delegated to local governments

Local - enabling acts allow local governments to enact zoning laws, zoning laws that are unauthorized or that exceed the authority of the local government are void (ultra vires)

Zoning, Types of laws

Traditionally, zoning laws are residential, commercial and industrial

Zoning, challenges to restrictive zoning

5th amend takings

14th amendment substantive due process - zoning laws that discriminate based on suspect classicization are subject to SS

14 Amend equal protection - government has substantial interest in regulating the secondary effects that result from entertainment businesses, zoning was that restrict their location but do not outright ban them are permitted

Federal Fair housing Act - prohibits discrimination on the basis of race, color, religion national origin,

Federal religious land use and institutionalized persons act - prohibits a land-use government regulation that imposes a substantial burden on the exercise of religion unless the goveremnt passes the strict scrutiny

State constitutional and statutory challenges - a stat constitution may provide a proprety owner with greater protection than the federal constitution does, a property owner may challenge a zoning ordinance for violating a state statute

Zoning, Treatment of existing nonconforming property

when zoning laws are modified,

- time for testing - the date the zoning ordinance takes effect

- time limit on nonconformity- often subject to a reasonable amortization period but some states do not permit the imposition of a time limit on existing non-conformity

-subsequent events - property owner is generally not permitted to expand a nonconform use, but repair an existing structure is permitted, the property owner may lost the right to use the property in a nonconforming manner if the property owner voluntarily abandons the nonconforming use, the right to use the property in a nonconforming way may be transferred along with the property

Zoning, treatment of a post-ordinance nonconformity

By ordinance or administrative action to obtain a variance the property owner must show (1) the variance does not deviate form the comprehensive zoning plan and (2) compliance with the zoning ordinance would result in unnecessary hardship

use variance - less likely

area variance - more likely

Zoning, Procedural due process

an owner sho is denied a permit or variance may appeal to a review entity, the owner has the right to an impartial decision maker, to present evidene, and to receive and explanation of the decision

Zoning, Changes

May be initiated by a property owner or by the local government; requires a petition and formal hearing before the Planning and Zoning Commission. The challenging property owner has the burden of proof.

Spot zoning is not permitted, arbitrary discrimination

Zoning, relationship to covenant

Compliance with a zoning restriction does not protect an owner from a suit for breach of a covenant, compliance with a covenant does not protect an owner from a zoning violation

Dedication

The giving of land by its owner to a public use and the acceptance for such use by authorized officials on behalf of the public.

Nuisance

Private nuisance is a substantial, unreasonable interference with another's use and enjoyment of property

Public nuisance is an unreasonable interference with the health, safety, or property rights of the community, for the private action for the public nuisance. the plaintiff show that suffered a different kind of harm than that suffered by the rest of the community

Remedies - damages, injunction

Licensing

license is a revocable non-possessory right to enter or use another's land, similar to easement, but it is revocable unless coupled with an interest or detrimentally relied upon

Water Rights, Riparian

Under the riparian doctrine, the water belongs not to the public or the government, but to those who own the land bordering on the watercourse.

Majority rule is that all lots owned by a single owner are riparian (meaning there is a right to take water) if they are contiguous and any of them border on the watercourse.

Water Rights, Prior Appropriation

Under the prior appropriation doctrine, the water belongs to the state, but the right to divert and use it can be acquired by an individual whether or not he is a riparian owner.

Water Rights, Diffusion of Surface water

All surface water not confined in lakes, rivers, streams or other confined watercourses is diffused surface water—

Rule of reasonable use: an owner may make reasonable use of his or her land, even though this alters the flow of diffused water in a manner that harms others.

Water Rights, Groundwater

Groundwater is water located under the surface.

There are four different rules in different jurisdictions governing extraction of groundwater:

Reasonable use approach—the water may be used only on the overlying land and for uses reasonably related to the natural use of the land;

Modified reasonable use approach (Restatement, Torts)—reasonableness is based on balancing the equities and hardships among all users;

Correlative rights—all owners of land over a common pool have equal extraction rights; and

Permit system based on prior appropriation

Lateral Support Rule

A landowner is strictly liable if his excavation causes adjacent land in its natural state to subside, but he is only strictly liable if his excavation causes adjacent land with improvements to subside if the land would have subsided in its natural state.

Otherwise, the landowner is only liable if his excavation was done negligently

Subjacent Support Rights

If a grantor conveys the right to have minerals taken from beneath the surface or the right to tunnel subsurface, and the land or existing buildings collapses, the grantee is strictly liable

But, if subsequently built buildings collapse, the grantee is only liable if they were negligent in their tunneling or mining